PAULOSE A ARICKAL v THE STATE OF KERALA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 23RD DAY OF JUNE 2020 / 2ND ASHADHA, 1942** ## **WP(C).No.12252 OF 2020(F)** ## **PETITIONER:** **PAULOSE A ARICKAL AGED 59 YEARS S/O. ANTONY, ARICKAL HOUSE, MURINGOOR P.O. MURINGOOR THEKKUMURY VILLAGE, CHALAKKUDY TALUK, THRISSUR DISTRICT 680 309.** **BY ADV. SRI.P.P.BIJU** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY CHIEF SECRETARY,**| ||**IRRIGATION DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM 695 001.**| |**2**|**ADDITIONAL CHIEF SECRETARY,**| ||**IRRIGATION DEPARTMENT PUBLIC OFFICE BUILDING,**| ||**OPP. MUSEUM, THIRUVANANTHAPURAM 695 001.**| |**3**|**THE DIRECTOR,**| ||**DIRECTORS OF MINING AND GEOLOGY,**| ||**KESAVADASAPURAM , PATTAM P.O.**| ||**THIRUVANANTHAPURAM 695 004.**| |**4**|**THE DISTRICT COLLECTOR,**| ||**(CHAIRMAN DISTRICT DISASTER MANAGEMENT AUTHORITY),**| ||**CIVIL STATION, KAKKANAD,**| ||**ERNAKULAM DISTRICT 682 030.**| |**5**|**THE DISTRICT COLLECTOR,**| ||**(CHAIRMAN DISTRICT DISASTER MANAGEMENT AUTHORITY),**| ||**CIVIL STATION, AYYANTHOLE,**| ||**THRISSUR DISTRICT 680 003.**| |**6**|**THE GEOLOGIST,**| ||**MINING AND GEOLOGY,**| ||**DISTRICT OFFICE, KAKKAND,**| ||**ERNAKULAM 682 030.**| **WP(C).No.12252 OF 2020(F)** 2 - **7 THE CHIEF ENGINEER, (IRRIGATION AND ADMINISTRATION), IRRIGATION DEPARTMENT, PUBLIC OFFICE BUILDING, OPP. MUSEUM, THIRUVANANTHAPURAM 695 033.** - **8 THE SUPERINTENDING ENGINEER., IRRIGATION DEPARTMENT, THRISSUR 680 020.** - **9 THE EXECUTIVE ENGINEER, IRRIGATION DIVISION, KAKKANAD P.O. ERNAKULAM 682 030.** - **10 THE STATION HOUSE OFFICER, KORATTY POLICE STATION, KORATTY P.O. THRISSUR DISTRICT 680 308.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.12252 OF 2020(F)** 3 ## **ALEXANDER THOMAS, J.** ## **=========================== W.P(C) No.12252 of 2020** **===========================** Dated this the 23[rd] day of June, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: _The petitioner is a contractor and his License number is 14/SECCA/1998-99. Petitioner had entered in an agreement with the 8[th] respondent for the works of Anti Sea Erosion (ASE) Construction of 4 nos bulb groynes between CP stones 1136 and 1139 and Edavanakkad in Vypin Island. The total estimated rate for the works fixed by the irrigation department is Rs.3.77 crores. Petitioner had taken the Tipper Lorries on rent for the transportation of Armour stones for the work. It is humbly submitted that earlier occasion, for the purpose of transportation of stones, 9[th] respondent had issued special pass to the petitioner. But now the revenue authorities and police department has insisting transit passes from the department of Mining and Geology. As per Rule 106(3) of Kerala Minor Mineral Concession Rules 2015 stated that; 'Where in the construction of public works like roads, canals, irrigation projects, railways as a part of the work, if extraction of minor mineral is inevitable, the department/authority may do so without obtaining_ **WP(C).No.12252 OF 2020(F)** 4 _quarrying permit under these rules. If the extracted mineral is to be transported out of the work site, competent authority shall issue mineral transit passes on an application made by the authority concerned, after collecting the royalty'. In this work, it is required to transport the stones to the work site from the place where the stones are collecting. Because big stones having 2500 kg weight are not available in any quarry and hence the petitioner is collecting stones from private lands. Therefore the respondents are bound to obtain transit pass from the concerned authority and provide the same to the petitioner for the work. Unless the transit pass is issued, the petitioner is not able to transport the amour stones and complete the works in time. The 6[th] respondent has issued Exhibit-P8 notice to the petitioner stating that the resplendent has waiting for the direction from 3[rd] respondent for further action._ In the light of these averments and contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers: - “i _. Issue a writ of mandamus or such other writ or direction directing the Respondents No's 1 & 2 to issue government order, invoking the provision under Rule 104 of Kerala Minor Mineral Concession Rules, granting permission to the petitioner to transport stones from various private lands at Ernakulam and Thrissur Districts, to Edavanakkad, Vypin Island, Ernakulam District._ - _ii. Issue a writ of mandamus or such other writ or direction, directing the Respondents No's 3 and 6 to issue transit passes to the petitioner based on Exhibit-P7 without any delay._ - _iii. To declare that the respondents No's 2, 7 to 9 are duty bound to provide transit passes to the petitioner for the construction of a sea wall based at Edavanakkad Vypin island_ **WP(C).No.12252 OF 2020(F)** 5 - iv. _Issue a writ of mandamus or such other writ or direction directing the 7[th] respondent to made a request to the respondents No's 4 and 5 and based on the request, the respondents No's 4 and 5 may be directed to issue order granting permission to transport armour stones from various places of Ernakulam and Thrissur District to Edavanakkad, Vypin Island invoking the powers under the Disaster Management Act._ - _v. Grant such other writ or direction if deem fit and proper to the facts and circumstances of the case.”_ 2. Heard Sri.P.P.Biju, learned counsel appearing for the petitioner, and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents. 3. For redressing the grievance of the petitioner, the petitioner had earlier approached this Court by filing WP(C)No.2309/2020, which has been disposed of by this Court as per Ext.P7 judgment rendered on 28.01.2020, and the same reads as follows:- 4. This Court as per Ext.P7 judgment had directed that in view of the provisions contained in Rule 106(3) of the Kerala Minor Mineral Concession Rules, 2015, the 2[nd] respondent therein (competent authority of the Government in the Irrigation Department) shall forward the application of the petitioner to the District Geologist concerned for the purpose of obtaining the permission in terms of the provisions of Rule 106(3) of Kerala Minor Mineral Concession Rules, 2015, and that the said exercise should be completed within three weeks from the date of receipt of a copy of the said judgment. Rule 106(3) of the Kerala Minor Mineral **WP(C).No.12252 OF 2020(F)** 6 Concession Rules, 2015, reads as follows:- _“106(3) Where in the construction of public works like roads, canals, irrigation projects, railways, as a part of the work, if extraction of minor mineral is inevitable, the department/authority may do so without obtaining quarrying permit under these rules. If the extracted mineral is to be transported out of the work site, competent authority shall issue mineral transit passes on an application made by the authority concerned, after collecting the royalty'”._ 5. Now, it appears that, pursuant to the directions issued by this Court in Ext.P7 judgment, the matter has already been referred by the competent authority of the Government in the Irrigation Department, to the District Geologist Concerned (6[th] respondent herein), who has now issued Ext.P8 proceedings dated 25.02.2020, after affording reasonable opportunity of being heard to the petitioner informing that the 6[th] respondent-District Geologist has referred the matter to the 3[rd] respondent-Director, Mining and Geology for his decision and which is awaited. Ext.P8 letter dated 22.05.2020 issued by the 6[th] respondentDistrict geologist, pursuant to the directions issued by this in Ext.P7 judgment, reads as follows:- “The petitioner, is a contractor and holder of a licence had entered in to an agreement with the 4th respondent ie. Superintending Engineer, Irrigation Central Circle, Thrissur for executing the work of Anti Sea Erosion (ASE) at Edavanakkad in Vypin Island. The total estimated rate of the work is 3.77 crores. The petitioner had taken vehicles on rent for the transportation of Armour stones etc. According to the counsel for the petitioner, the nature of the work mainly involves supplying and providing layer using 1500 Kg to 2500 Kg blasted granite stones with an average specific gravity of not less than 2.67 in as nearly cubical as possible shape, with thickness not less than 55 cm as per the approved design including cost of stones, loading from quarry and conveying to **WP(C).No.12252 OF 2020(F)** 7 site. As per Ext.P1, the stones up to 2500 Kg are required for the work and therefore, it is not possible to get huge stones from the quarry and started collecting huge armour stones from the private land owners and the Government lands without giving remuneration. Reliance has been placed on the special permit dated 07.08.2008 (Ext.P2) issued by the 5th respondent i.e. the Executive Engineer. In this regard, submitted WP(C).No.2309 OF 2020(K) 3 applications Ext.P6 to P10 for issuance of transit permit to various authorities namely 1. Chief Secretary, Secretariat, Thiruvananthapuram 2. Additional Chief Secretary, Irrigation Department, Thiruvananthapuram 3. Chief Engineer, Irrigation and Administration, Thiruvananthapuram 4. Superintending Engineer, Irrigation Central Circle, Thrissur 5. Executive Engineer Irrigation Division, Ernakulam, for issuance of transit permit. 2. The learned Government Pleader submits that the 'competent Authority' as per the definition under the Kerala Minor Mineral Concession Rules is the authority or officer appointed by the Government by notification in the official Gazette. The petitioner is required to submit application instead of relying upon the special permit issued by the 5th respondent. Having heard counsel for the parties and as well as going through the provisions of Rule 106(3) of Kerala Minor Mineral Concession Rules 2015 provides that: 'where in the construction of public works like roads, canals, irrigation projects, railways, as a part of the work, if extraction of minor mineral is inevitable, the department/authority may do so without obtaining quarrying permit under these rules. For the purpose of transportation of WP(C).No.2309 OF 2020(K) 4 extracted mineral out of the work site, the competent authority shall issue mineral transit passes on an application made by the authorities concerned after collecting the royalty'. I am of the view that it is in this background of the matter, the petitioner submitted applications to the authorities, including the Cheif Engineer, Irrigation Department. Accordingly, I dispose of this writ petition with a direction to the 2nd respondent to forward the application of the petitioner to the Geologist for the purpose of obtaining the permission in terms of the provisions of Rule 106(3) of Kerala Minor Mineral Concession Rules 2015. Let this exercise be taken within a period of three weeks from the date of receipt of a copy of this judgment in accordance with law.” 6. After hearing the learned for the petitioner and the learned Senior Government Pleader appearing for the respondents, this Court is apprised that the matter is now, pending consideration before the 3[rd] respondent-Director, Mining and Geology, pursuant to the reference of the **WP(C).No.12252 OF 2020(F)** **==> picture [7 x 7] intentionally omitted <==** matter by the 6[th] respondent-District Geologist to the 3[rd] respondentDirector, Mining and Geology, who is the head of the department of the Mining and Geology. 7. Accordingly, taking note of the facts and circumstances of the case, it is ordered that, the 3[rd] respondent-Director, Mining and Geology will immediately take up the matters referred to him as per Ext.P8, after affording reasonable opportunity of being heard to the petitioner should render a considered decision in the matter of permission sought for by the petitioner in terms of Rule 106(3) of the Kerala Minor Mineral Concession Rules, 2015, without any further delay and at any rate, within a period of three weeks from the date of production of a certified copy of the judgment. The said short time may be dissimulated by the court as the matter should have been concluded long ago in strict compliance with the directions issued by this Court in Ext.P7 judgment and as the specific case of the petitioner is that he is carrying out the aforesaid work only in relation to the works entrusted to him by the Irrigation department for carrying out emergent work for prevention of sea erosion. 8. The petitioner will produce certified copies of this judgment, along with copies of the memorandum of this W.P(C) before the 3[rd] respondent-Director, Mining and Geology as well as before the Secretary of the 6[th ] respondent-District Geologist for necessary information **WP(C).No.12252 OF 2020(F)** 9 and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** dlk/26.06.2020 **WP(C).No.12252 OF 2020(F)** 10 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PROFORMA DATED NIL ISSUED BY THE 8TH RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE SPECIAL PERMIT DATED 15.3.2019 ISSUED BY THE 9TH RESPONDENT.** - **EXHIBIT P3** - **TRUE COPY OF THE REQUEST DATED 23.04.2020 SUBMITTED BY THE 7TH RESPONDENT TO THE DISTRICT COLLECTOR ALAPPUZHA.** - **EXHIBIT P4 TRUE COPY OF THE REQUEST DATED 23.04.2020 SUBMITTED BY THE 7TH RESPONDENT TO THE 5TH RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 28.04.2020 END BY THE SECRETARY WATER RESOURCE DEPARTMENT THIRUVANANTHAPURAM.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 30/04/2020 ISSUED BY THE DISTRICT COLLECTOR ALAPPUZHA.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 28.01.2020 IN WPC NO. 2309/2020 OF THIS HONBLE COURT.** - **EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 2.05.2020 ISSUED BY THE 6TH RESONANT TO THE PETITIONER.** - **EXHIBIT P9 TRUE COPY OF THE REPORT DATED 23.0.2020 ISSUED BY THE 10TH RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE REQUEST DATED 28.1.2019 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.**