P.V. Sugunan and S. Harish v State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 2ND DAY OF AUGUST 2013/11TH SRAVANA, 1935 WA.No. 129 of 2013 () IN WP(C).13837/2008 ------------------------------------------- JUDGMENT IN WP(C) 13837/2008 of HIGH COURT OF KERALA APPELLANT(S)/PETITIONERS:-: --------------------------------------------- 1. P.V.SUGUNAN, S/O.VASUDEVAN, AGED 61 YEARS HARI KRISHNALAYAM, THIRUNELLOOR P.O. CHERTHALA, ALAPPUZHA DISTRICT. 2. S.HARISH, S/O.SUGUNAN, AGED 33 YEARS HARI KRISHNALAYAM, THIRUNELLOOR P.O. CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.B.RENJITHKUMAR RESPONDENT(S)/RESPONDENTS:-: ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY DEPARTMENT OF INDUSTRIES, SECRETARIAT THIRUVANANTHAPURAM-695001. 2. DISTRICT COLLECTOR, ALAPPUZHA, PIN-688001. 3. SPECIAL TAHSILDAR (L.A.), INDUSTRIAL GROWTH CENTRE, CHERTHALA - 688006. 4. KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR THIRUVANANTHAPURAM, PIN-695001. 5. THE EXCEL GLASSES PVT.LTD., REPRESENTED BY ITS MANAGING DIRECTOR, ALAPPUZHA, PIN-688001. WA NO.129 OF 2013 6. DIRECTOR, MINING AND GEOLOGY, GOVERNMENT OF KERALA THIRUVANANTHAPURAM, PIN - 695 001. R5 BY ADV. SRI.JOSEPH KODIANTHARA (SENIOR ADVOCATE) R5 BY ADV. SRI.V.ABRAHAM MARKOS R5 BY ADV. SRI.MATHEWS K.UTHUPPACHAN R5 BY ADV. SRI.BINU MATHEW R5 BY ADV. SRI.TERRY V.JAMES R5 BY ADV. SRI.TOM THOMAS (KAKKUZHIYIL) R4 BY ADV. SRI.K.JAJU BABU, SC, KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION R1 TO R3 & R6 BY SENIOR GOVERNMENT PLEADER SRI C.R.SYAMKUMAR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO.129/2013 ## APPENDIX APPELLANTS' EXHIBITS: ANNEXURE-A1 TRUE COPY OF COMMON JUDGMENT DATED 29.09.2011 IN CIVIL APPEAL NO.7588/2005 AND 7589/2005 OF THE HONOURABLE SUPREME COURT OF INDIA. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** ## **--------------------------------------** ## **W.A. No.129 of 2013** **-------------------------------------Dated this the 2[nd] day of August, 2013.** ## **JUDGMENT** ## K.M.Joseph, J. Appellants are the writ petitioners. Prayers in the writ petition are the following: “(a) issue a writ of mandamus or any other appropriate writ, order or direction granting permission to the petitioners to the removing or mining of silica from the acquired land within a time frame fixed by this Honourable Court; (b) issue a writ of mandamus or any other appropriate writ, order or direction directing the 4[th] respondent to issue NOC for mining of silica in the acquired land;” 2. Case of the appellants in the writ petition, in brief, was as follows: An extent of one hectare and 83 sq. metres (5.2 ares dry and 94.4 ares wet) of land owned by the 1[st] appellant came to be acquired by the State Government during the year 2000. The purpose of acquisition was for the 4[th] respondent (Kerala State Industrial Development Corporation) to establish an industrial growth centre at Pallippuram. Acquisition proceedings were over and on protest, the amount was received by the appellants. Acquisition is absolutely of the land but, there was a natural collection of silica sand in the acquired property. 1[st] 2 WA No.129/2013 appellant added collection of silica years ago. Silica is stated to be a major mineral much valued. 2[nd] appellant is the son of the 1[st] appellant. He submitted an application for mining of the silica therefrom. Ext.P1 purports to be the report of the Mineral Processing Engineer approving the value of silica land. Total description of deposit of silica sand is stated to be 50400 tones as on 14.11.2003. Processing Engineer issued a project report as Ext.P2. Mining lease was sanctioned to the 2[nd] appellant. Ext.P3 purports to be the mining lease issued to the 2[nd] appellant. By Ext.P4, 6[th] respondent also sanctioned mining lease to the 2[nd] appellant approving the mining plan. However, the authorities right from the beginning were obstructing the mining, it is stated. 1[st] appellant filed O.P.No.23118 of 2000 for permission to remove silica sand collected in the acquired property. On 11.08.2000, this Court granted Ext.P5 interim direction permitting the 1[st] appellant to remove the sand collected and kept in the acquired property pending disposal of the original petition. Ext.P6 is the judgment in the said original petition. It reads as follows: “Learned counsel for the petitioner submits that thanks to the interim passed by this Court. the petitioner could remove the sand, seeking removal of which only this original petition was filed. 2. The submission is recorded. The original petition will stand disposed of accordingly.” Lease permission granted vide Ext.P3 is subject to the no objection certificate of the 4[th] respondent. The wilful non-issuance of no objection certificate disabled the appellants to remove the sand. The approximate value of silica 3 WA No.129/2013 sand collected in the acquired property will fetch a minimum of Rupees Five crores. The land value is Rupees One lakh per cent. Acquired land and silica sand at present are in the possession of the 4[th] respondent. Considerable silica sand was stolen. Appellants reliably understood that 5[th] respondent is planning for the removal of silica sand and respondents 4 and 5 are colluding. It is on these allegations that the appellants approached this Court. Counter affidavits have been filed by the parties. After hearing the parties, learned Single Judge dismissed the writ petition. It is found that the appellants do not have any legal right to maintain the writ petition. When the property is acquired, the same vests free from all encumbrances with the Government and if any licence is granted by the Government to the owner for any purpose by removal of sand, it cannot crystalize into a legal right to enable the licensee to demand licence for a further period. There was no decision by the Government to renew the licence or to grant a fresh licence. Learned Single Judge held that this Court cannot direct the Government to permit the petitioner to remove any sand from the property. Aggrieved by the same, appellants are before us. 3. We have heard the learned counsel for appellants, learned Government Pleader and the learned counsel for respondents 4 and 5. 4. Learned counsel for the appellants would submit that what was stated in Ext.P6 judgment which we have extracted is a mistake of fact and no amount of silica could be removed because no objection certificate from the 4[th] respondent was not obtained. He would further rely on the judgment of the Apex Court which is pronounced in Civil Appeal Nos.7588 & 7589 of 2005 (See **Royal** **Orchid Hotels Limited and another v. G.Jayarama Reddy and others ((2011)** 4 WA No.129/2013 **10 SCC 608** ). He would contend that this is a case where the land was acquired for the purpose of the 4[th] respondent and now the right in respect of the land is passed to the 5[th] respondent and this is impermissible. At any rate, he would contend that appellants have a preferential right to remove the silica sand from the property which is acquired. 5. For contrary, learned Government Pleader would point out that the land which contained silica sand was acquired after paying compensation, which was received by the appellants and thereafter, the appellants cannot make any right in the matter as claimed. It is further submitted that the silica sand has to be removed for the purpose for which the land is acquired for the 4[th] respondent, viz., setting up an industrial growth centre. He would also emphasise Ext.P6 judgment and pose the question as to how appellants can still claim that the silica sand could not be removed in the teeth of the judgment. 6. Learned counsel appearing on behalf of the 4[th] respondent Kerala State Industrial Development Corporation also submitted that the appellants have no right and the land is intended to be used for the growth centre and it is only the silica sand which has to be removed. It is submitted that possession was taken on 27.07.2000. The award was passed on 16.09.2000. He would submit that the decision of the Apex Court relied on by the appellants is clearly distinguishable on facts and there is no challenge to the acquisition proceedings in this case. It is submitted that vesting of the property became absolute under Section 16 of the Land Acquisition Act. He relied on the decision in **Northern Indian Glass Industries v. Jaswant Singh and others ((2003) 1 SCC 335** ). It 5 WA No.129/2013 is pointed out that actually Ext.P3 which is the mining lease relied on by the appellants is based on an application filed by the 2[nd] appellant on 27.12.1999 which is prior to the date of the acquisition. It is also pointed out that Ext.P5 interim order is actually dated 11.08.2000 which is prior to the date of the award which is dated 16.09.2000. 7. After hearing the learned counsel for parties, we are of the view that there is no merit in the appeal. Admittedly the property in which silica sand is contained belonged to the 1[st] appellant. The same came to be acquired under the Land Acquisition Act by the State of Kerala for the purpose of the growth centre of the 4[th] respondent, a public sector unit of the State of Kerala. The appellants have admittedly been given compensation under the award. There is no challenge to the acquisition proceedings. Appellants only claimed right to remove the silica sand. Appellants admittedly had approahed this Court by filing the earlier original petition at a time when the award had not been passed and obtained Ext.P5 interim order by whcih the appellants were permitted to remove the silica sand. In the year 2004, ie. after three years of the interim order, the said original petition itself came to be disposed of on the basis that the sand had been removed. The said submission was in fact recorded. We may note the gap between Ext.P5 interim order and the judgment, ie., three years elapsed. No doubt, the appellants would project the case that they could not remove the silica sand for want of no objection certificate. But, here we must notice that we cannot proceed on the basis that the sand was not removed when the sand is stated to have been removed and it was the submission of the 1[st] appellant which was recorded and the original petition was disposed of. The appellants 6 WA No.129/2013 have not sought to get the said judgment reviewed. As things stands thus, we think that in view of the conduct on the part of the appellants they cannot claim reliefs as claimed in the writ petition. 8. We may further examine the effect of the judgment of the Apex Court relied on by the appellants. That was a case where the acquisition proceedings itself were put in challenge and the compensation amount had not been received and there was malafides alleged. It was found by the Apex Court that the property which was acquired came to be transferred to a private person. It was in such circumstances the court laid down what it has pronounced. At any rate, therefore, the facts are clearly distinguishable. In this case, we have already noticed that the property came to be acquired. The 1[st] appellant stands paid compensation. At any rate, even applying the said judgment, we find on facts that there would be differences as noticed. This is a case where the 4[th] respondent maintains that it does not intend to transfer the land and it intends to use the land for public purpose for which the land was acquired and what is sought to be done is to remove silica deposit found on the land. We do not understand the basis for appellants' contention that such removal of silica and not transfer of land as such would attract the principle which has been laid down in the decision of the Apex Court. We are also at a loss to find out the basis for the claim of the appellants that the appellants have preferential rights. No provision of law is brought to our notice under which the former owner of the land and silica deposit which was found therein could lay a claim on a preferential basis for its removal when the title passed from the 1[st] appellant to the Government under the award. The title vested with the Government free of 7 WA No.129/2013 all encumbrances. The award has been accepted by the 1[st] appellant, the former owner of the property. We again reiterate that this is not a case where the authority for whom the acquisition was done is attempting to transfer the land to a private individual and what is sought to be done is only to remove the silica deposit. The appellant do not lay a claim to the silica sand as owners after acquisition. We may also notice that the period for which the licence is given to the 5[th] respondent, has already expired. Having regard to all such circumstances, we see no merit in the appeal. Appeal is dismissed. Needless to say, if the 4[th] respondent Kerala State Industrial Development Corporation decides to lease out the land to any private party, this judgment will not stand in the way of it considering the claim of the appellants along with others in accordance with law. ## **K.M.JOSEPH, JUDGE.** ## **A. HARIPRASAD, JUDGE.** **cks**