P. M. Basheer s/o Musthafa v. State of Kerala and Director of Mining and Geology

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** ## **WP(C).No.11224 OF 2020(C)** ## **PETITIONER:** **P.M.BASHEER S/O.MUSTHAFA, POOTHOOKKADAN HOUSE, WEST VENGOLA, ERNAKULAM-683554.** **BY ADV. SRI.ANOOP.V.NAIR** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF MINING AND GEOLOGY, DIRECTORATE OF MINING AND GEOLOGY, THIRUVANANTHAPURAM-695041.** **BY ADVS.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.11224 of 2020 2 ## ALEXANDER THOMAS, J. ------------------------------------ ## W.P(C) No. 11224 of 2020 -----------------------------------Dated this the 17[th] day of June, 2020 ## **JUDGMENT** The prayers in the above writ petition (C) are as follows: - _i) issue a writ of certiorari order or direction calling for records leading to Exhibit P7 and quash Exhibit P7._ - _ii) issue a writ of mandamus or other appropriate writ, order or direction directing the 2[nd] Respondent to reconsider Ext.P6 application of the petitioner in a time bound manner at any rate within 2 weeks on the basis of the judgments of this Hon'ble Court produced as Exhibits P5 and P8._ - _iii) issue a writ of mandamus or other appropriate writ, order or direction directing the 2[nd] Respondent to reconsider Ext.P6 application of the petitioner in a time bound manner at any rate within 2 weeks on the basis of the judgments of this Hon'ble Court produced as Exhibits P5 and P8 and grant the extension of lease period by entering a supplementary lease._ - _iv) Issue such other appropriate writ order or direction that may be deemed to be just and equitable in the facts and circumstances of the case. For which favour the Petitioner as in duty bound shall ever pray._ 2. Heard Sri.Anoop.V.Nair, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Government Pleader appearing for the respondents. 3. The essence of the complaint of the petitioner in this writ W.P(C) No.11224 of 2020 3 proceedings is to the effect that during the currency of Ext.P1 quarrying lease dated 10-03-2008, which was valid till 09-03-2020, he was disabled from functioning the quarry on account of stop memo, which was later interfered with by this Court as per order dated 10-07-2017 in W.P(C) No.16069/2017. According to the petitioner, therefore he was thus disabled from functioning the quarry for the period from 18-05-2017 to 27-09-2018 (16 months and 10 days) and that in view of the subsequent judgment of this Court in W.P(C) No.13150/2018, the petitioner was permitted to restart the quarrying operation as per Ext.P3 order passed by the 2[nd] respondent. On this basis the petitioner would contend that the currency period of the petitioner's Ext.P1 quarrying lease should be reckoned by excluding the abovesaid period of 16 months and 10 days (for the period from 18-05-2017 to 27-09-2018), as he was unlawfully disabled from functioning the quarry and to that extent the petitioner should be permitted to enjoy the benefits of Ext.P1 quarrying lease for the said additional period of 16 months and 10 days. The said plea of the petitioner has now been rejected as per Ext.P7 order dated 27-05-2020 issued by the 2[nd] respondent Director of Mining and W.P(C) No.11224 of 2020 4 Geology. Exhibit P7 dated 27-05-2020 issued by the 2[nd] respondent Director of Mining and Geology reads as follows: _"_ വ�ഷയ� _:-_ ഖന�യ�� ഖന�ജങള�� _-_ ക��റ�യ�ങ ല�സ ക�ല�വധ� ദ�ർഘ�പ�ക�നത�ന�ള അന�മത�ക�യ� സമർപ�ച അപപക മറ�പട� അയക�നത സ�ബദ�ച സ+ചന _: 1._ ബഹ� _._ ഹഹപക�ടത� _W.P(c ) No.33798/2019_ നമർ പകസ�ൽ _11 -12 -2019_ ത�യത� പ�റപപട�വ�ച ഉതരവ _2. 27 -2 -2020_ ത�യത� ഈ ആഫ�സ�ൽ ലഭ�ച ത�ങള�പട അപപക _._ പമൽ സ+ചനകള�പലക� ശ<ദ കണ�ക�ന� പ>�പ? പമപമ� ലഭ�ചത ശപക�ര� ഖനന ശപവർതനങൾ ന�ർത�വച�ര�ന ക�ലയളവ�യ _16_ മ�സവ�� _10_ ദ�വസവ�� ല�സ ക�ല�വധ�യ�ൽ ദ�ർഘ�പ�ച� തരണപമന ത�ങള�പട ആവ<A� ന�യമ�ന�സBത� പര�ഗണ�ക�വ�ൻ ന�ര��ഹമ�ലE�തത�ണ _._ ബഹ� _._ ഹഹപക�ടത� _33798/2019_ നമർ റ�ട? പപറ�ഷന�ൽ _11-12-2019_ ത�യത� പ�റപപട�വ�ച ഉതരവ�ൽ ല�സ ക�ല�വധ� ദ�ർഘ�പ�ച� _._ നലക�നത�പലക� ന�ർപദ<� നൽക�യ�ലE എന വ�വര� അറ�യ�ക�ന� ആയത�ന�ൽ ട� അപപക ന�രസ�ച� ഉതരവ�ക�ന� _. .”_ 4. The petitioner would contend that a reading of Ext.P7 would show that the abovesaid crucial aspects of the matter has not been taken into consideration by the 2[nd] respondent and who has proceeded on the tangent as if the plea of the petitioner is for grant of additional mining lease etc,. The petitioner would also place reliance on the directions of this Court in Paragraph No.21(1) of the judgment in the case in _**Omana v. Anil Kumar [2017 (2) KLT 481]**_ , page 497, wherein this Court held that in this case, wherein stop memos were issued that the period during which such quarry operators when W.P(C) No.11224 of 2020 5 disabled from functioning the quarry during the pendency of the said writ proceedings should be excluded for the purpose of reckoning the validity period of the quarrying lease and the said period should be added to the validity period of the quarrying lease etc,. The petitioner would thus contend that the said principle of equity has been recognised by this Court even in the case where the quarry operator has been illegally disabled to function on account of stop memos etc., which has been interdicted later by this Court. 5. After hearing both sides, it is seen from a reading of the impugned Ext.P7 rejection order dated 27-05-2020 issued by the 2[nd] respondent Director of Mining and Geology that the abovesaid crucial and relevant aspects has not been duly adverted to and considered by the 2[nd] respondent. It appears that the 2[nd] respondent has proceeded in the matter as if the plea of the petitioner is for grant of additional lease as conceived in judgments of this Court as in Ext.P8, which according to the petitioner is an entirely different and separate issue. In that view of the matter this Court is constrained to take the view that the matter requires serious reconsideration and would warrant a remit. For effectuating such a remit the impugned W.P(C) No.11224 of 2020 6 Ext.P7 rejection order dated 27-05-2020 will stand set aside and Ext.P6 representation dated 09-01-2020 submitted by the petitioner will stand remitted to the 2[nd] respondent for consideration and decision afresh. The 2[nd] respondent will afford reasonable opportunity of being heard to the petitioner through authorised representative or counsel if any, and may also ascertain as to the correctness of the petitioner's submission, that he was disabled to function for the abovesaid period from 18-05-2017 to 27-09-2018 on account of stop memo, which has been interfered with by this Court in the order in W.P(C) No.16069/2017 and W.P(C) No.13150/2018 etc., and thereafter should take a considered decision on the plea made by the petitioner in Ext.P6 representation without much delay, at any rate, within a period of one month from the date of production of a certified copy of this judgment and taking due note of the directions issued by this Court in Para No.21 (1) of the common judgment dated 25-04-2017 in W.P(C) No.20532/2010 and connected cases in _**Omana v. Anil Kumar [2017 (2) KLT 481, p.497].**_ 6. The petitioner will produce certified a copy of this judgment W.P(C) No.11224 of 2020 7 along with a copy of the memorandum of W.P(C) with all the Exhibits before the 2[nd] respondent Director of Mining and Geology, for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS W.P(C) No.11224 of 2020 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE QUARRYING LEASE DATED 10.03.2008 ISSUED TO THE PETITIONER.** **EXHIBIT P2 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE ISSUED TO THE PETITIONER DATED 21.03.2018.** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 18.09.2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 02.11.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WP(C) 33798/2019 DATED 11.12.2019 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 09.01.2020 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 27.05.2020 BEARING NO.2408/M3/2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WP(C) 17679/2019 PASSED BY THIS HON'BLE COURT DATED 29.11.2019.** ## **RESPONDENT'S/S EXHIBITS: NIL** ## **//TRUE COPY//** **PA TO JUDGE**