Moosakutty v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941** ## **WP(C).No.20541 of 2019** ## **PETITIONER:** **MOOSAKUTTY AGED 58 YEARS S/O. USSANAR, KOMATHUPARAMBU HOUSE,VAVULLIAPURAM P.O., ALATHUR TALUK, PALAKKAD DISTRICT** **BY ADVS.** **SRI.JOHN JOSEPH(ROY) SRI.TITUS JOSEPH** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA,PIN-695 001** - **2 THE ENFORCEMENT DIRECTOR (INVESTIGATION), INCOME TAX DEPARTMENT, IYKAR BHAVAN, NEW DELHI1100001** - **3 THE DEPUTY DIRECTOR (INVESTIGATION), INCOME TAX DEPARTMENT, OFFICE OF THE ASST. DEPUTY DIRECTOR, INCOME TAX DEPARTMENT, I.S.PRESS ROAD, ERNKAULAM,KOCHI-682 018** - **4 THE ASST. DEPUTY DIRECTOR (INVESTIGATION) INCOME TAX DEPARTMENT, OFFICE OF THE ASST. DEPUTY DIRECTOR, INCOME TAX DEPARTMENT, PALAKKAD,PIN-678 001** ## **BY ADVS.** **SRI MANU RAJ K.J, GOVERNMENT PLEADER SRI JOSE JOSEPH, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20541 of 2019 2** ## **JUDGMENT** The petitioner, who is stated to be a permanent resident of Alathur Taluk in Palakad District and a social worker and human rights activist in and around Palakad, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondents 2 to 4 to consider and pass orders on Ext.P6 and P7 petitions within such time as may be fixed by this Court and a writ of mandamus commanding the respondents to stop the quarrying of mineral from the prohibited area of the Choolannore Thunchath Ezhuthachan Memorial Peacock Protection Area and Wild Life Division of Peechi and Forest Range office of Anakkapara under the Divisional Forest Office, Nemmara. Paragraph 1 of the writ petition reads thus; “1. The petitioner is a permanent resident of Alathur Taluk in Palakkad District and is a social worker and a human rights activist in and around Palakkad. Being a citizen of India, petitioner used to bring various illegalities and unfair activities of the Government officials, Local Self Government employees and officers of the Police Department before the competent courts of law, for redressal of the grievances. Petitioner has no personal interests in the issues but the only goal is for ## **WP(C).No.20541 of 2019 3** the uphold of the fair Democratic System of the state. It is submitted that a partnership firm of Sri.Tomy Joseph, Boby Abraham, Josh P. Mathew, Tom Mathew and Baby Mathew are conducting two huge quarries - and crusher units at VALATTA Desom in Kunnathur 1 Village of Alathur Taluk, under the name and style of M/s. Emmanuel Crushers and Mines Pvt.Ltd and M/s. St. Josephs Quarry. Both the said units are working with an employment strength of more than 200 employees and most of them are from North India. The said units are within the limits of Choolannoore Thunchath Ezhuthachan Memorial Peacock Protection Area and Wild Life Division of Peechi and Forest Range office of Anakkapara under the Divisional Forest Office, Nemmara. The entire area now under quarry was agricultural land of poor and illiterate people from whom the said land were possessed by the said firm, ” now having an extent of more than 600 Acres. (underline supplied) The averments in the writ petition and also the reliefs sought for in Exts.P6 and Ext.P7 representations would make it explicitly clear that the petitioner is seeking relief against the quarries and crusher units run by the persons referred to in Paragraph 1 of the writ petition. 2. On 26.07.2019, when this writ petition came of consideration it is ordered to be listed today for further **WP(C).No.20541 of 2019 4** consideration and the learned counsel for the petitioner was asked whether, considering the pleadings and materials on record and also the the nature of reliefs sought for, this writ petition has to be treated as a public interest litigation, which has to be filed along with an affidavit as per the mandate of Rule of 146A of the Rules of High Court of Kerala, 1971. 3. Heard the learned counsel for the petitioner, learned Government Pleader for 1[st] respondent and also the learned Standing Counsel for the Income Tax Department. 4. The learned counsel for the petitioner would submit that the first relief sought for in this writ petition is a writ of mandamus commanding respondents 2 to 4 to consider and pass orders on Ext.P6 and P7 representations made by the petitioner, within a time limit be fixed by this Court, and for granting such a relief the persons who are conducting the quarries and crusher units at Valatta Desom in Kunnathur-1 Village, under the name and style of M/s. Emmanuel Crushers and Mines Pvt. Ltd and M/s. St.Josephs Quarry, need not be made parties to this writ petition. 5. In **Prabodh Verma v. State of U.P. [(1984) 4 SCC 251]** a Three-Judge Bench of the Apex Court held that a ## **WP(C).No.20541 of 2019 5** High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them before it as respondents in a representative capacity, if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them the High Court ought to dismiss the petition for non-joinder of necessary parties. 6. The law laid down by the Apex Court in **Prabodh Verma's Case (Supra)** is relied on by a Division of Bench of this Court in **Shameer M.V. and others v. Aju Thomas and others** (judgment dated 19.11.2018 in W.A.No.2260 of 2018). The conduct of the petitioner in filing this writ petition without the affected parties in the party array can only be deprecated. 7. A reading of Ext.P6 complaint dated 11.12.2017 submitted before the 4[th] respondent and Ext.P7 complaint dated 25.06.2018 submitted before respondents 2 to 4 would make it explicitly clear that the petitioner filed those complaints against the quarries and crusher units run by the aforesaid partnership firms. The petitioner is seeking **WP(C).No.20541 of 2019 6** interference by respondents 2 to 4 for the closure of the quarries and crusher units, based on the allegations contained in those complaints. Those allegations are also reiterated in the statement of facts of this writ petition. The second relief sought for in this writ petition is a writ of mandamus commanding the respondents to stop the quarrying of mineral from the area in question. In such circumstances the petitioner cannot maintain a writ petition before this Court, under Article 226 of the Constitution of India, for the reliefs sought for as above, without the persons/partnership firms, which are running the quarries and crusher unit in the property in question. In such circumstances this writ petition is liable to be dismissed for non-joinder of necessary parties. 8. Moreover going by the averments in the writ petition and the nature of reliefs sought for, the petitioner has to seek the reliefs sought for in this writ petition by filing a public interest litigation. A public interest litigation has to be supported by an affidavit sworn to by the petitioner in terms of Rule 146A of the Rules of the High Court of Kerala, 1971. Rule 146A, which deals with affidavits in Public Interest Litigation, ## **WP(C).No.20541 of 2019 7** ## which reads thus: “146A. Affidavits in Public Interest Litigation.-A person filing a Public Interest Litigation, in addition to the requirements stipulated in the other rules of this Chapter, shall precisely and specifically affirm in the affidavit to be sworn to by him the public cause he is seeking to espouse, that has no personal or private interest in the matter, that there is no authoritative pronouncement by the Supreme Court or the High Court on the question raised and that the result of the litigation shall not lead to any undue gain to himself or to anyone associated with him.” 9. For the aforesaid reasons, this writ petition is nothing but an abuse of process of Court. It is accordingly dismissed imposing a cost of Rs.5,000/- payable to the Kerala Legal Service Authority, which is providing free legal service to the weaker sections of the society, within a period of two weeks from the date of receipt certified copy of this judgment; however without prejudice to the right of the petitioner to file a writ petition with proper parties in the party array, and taking note of the provisions under Rule 146A of the Rules of the High Court of Kerala, 1971. 10. In case the petitioner fails to pay the said amount within the time limit specified as above, it would be open to **WP(C).No.20541 of 2019 8** the Kerala State Legal Services Authority to recover the said amount by initiating revenue recovery proceedings against the petitioner and his assets, in terms of G.O.(Ms) No.107/2011/RD dated 26.2.2011, by which the provisions under the Revenue Recovery Act, 1968 were made applicable to the recovery of amounts due from any person or class of persons to the said Authority. Registry shall communicate a copy of this order to the Member Secretary, Kerala State Legal Services Authority, Kochi. ## **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** LEK **WP(C).No.20541 of 2019 9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P(C) NO.12643 OF 2014 DATED 17.07.2014** **EXHIBIT P2 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER TO THE DISTRICT COLLECTOR DATED 23.11.2015** **EXHIBIT P3 TRUE COPY OF THE REPORT SUBMITTED BY THE DEPUTY SUPT. OF POLICE VIGILANCE AND ANTI CORRUPTION BUREAU, BEFORE THE DISTRICT COLLECTOR PALAKKAD DATED 29.11.2016** **EXHIBIT P4 TRUE COPY OF THE LETTER ISSUED BY THE WILDLIFE WARDEN PEECHI DATED 16.10.2017** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.4557 OF 2018 DATED 07.03.2018** **EXHIBIT P6 TRUE COPY OF THE COMPLIANT FILED BEFORE THE 4TH RESPONDENT ON 11.12.2017** **EXHIBIT P7 TRUE COPY OF THE COMPLAINT DATED 25.06.2018 FILED BY THE PETITIONER BEFORE THE RESPONDENTS 2 TO 4** ## **RESPONDENT'S/S EXHIBITS: NIL**