Shoukkathali T.M. v. District Environment Impact Assessment Authority (DEIAA), Palakkad District, Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 02ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941** ## **WP(C).No.37177 OF 2018(V)** ## **PETITIONER :** **SHOUKKATHALI T.M, AGED 66 YEARS S/O MOITHEENKUTTY THATTATHAZHATHU KODANAD, MEZHATHUR P.O. PALAKKAS -679 534.** **BY ADV. SRI.BEN TOM** ## **RESPONDENTS:** - **1 MEMBER SECRETARY DISTRICT ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (DEIAA), PALAKKAD DISTRICT, KERALA, PIN 678 001.** - **2 THE GEOLOGIST, PALAKKAD DISTRICT ,DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, MUNICIPAL SHOPPING COMPLEX, T.B.ROAD, PALAKKAD-678 014** - **3 STATE OF KERALA, REPRESENTED BY SECRETARY, INDUSTRIES DEPARTMENT, KERALA, PIN-691 001** - ***ADDL. R4 STATE LEVEL ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY (SEIAA) DEPARTMENT OF ENVIRONMENT AND FOREST, THIRUVANANTHAPURAM-695001, GOVERNMENT OF KERALA, REPRESENTED BY ITS MEMBER SECRETARY. (ADDL.R4 IS IMPLEADED AS PER ORDER DATED 04/02/2019 IN IA.NO.02/2019 IN WP(C)NO.37177/18)** ## **BY SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.37177 OF 2018(V)** **2** ## **JUDGMENT** The petitioner, who is stated to be the owner of a property having an extent of 0.2344 hectares comprised in Survey No.505/1B of Nagalassery Village in Pattambi Taluk, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2 to consider Ext.P3 application for renewal of Ext.P1 environmental clearance and Ext.P5 application for renewal of Ext.P2 quarrying permit. 2. On 15.11.2018, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions. 3. A statement has been filed by the 2[nd] respondent. Paragraphs 4 to 7 of the said statement read thus; _“4. The petitioner had submitted applications for quarrying permit in form A on 08.01.2018 as per KMMC Rules 2015 for extracting ordinary earth along with environmental clearance certificate obtained from DEIAA Palakkad order dated 03.01.2018 and possession certificate. Other requisite documents were also produced._ _5. On receipt of the application the 2[nd] respondent_ **WP(C).No.37177 OF 2018(V)** **3** _inspected the applied area and found that the applied area is having all clearance stipulated in the Kerala Minor Mineral Concession Rules, 2015. The 2[nd] respondent issued quarrying permit to the petitioner after realizing advance royalty of Rs.2,00,000/- vide Chalan No.KL009756397201718M dated 12.01.2018, District Treasury, Palakkad for extracting 5,000 cubic meter of ordinary earth from an area of 0.2344 hectares in survey No.505/1B of Nagalassery Village of Pattambi Taluk, Palakkad District under sub rule (2) of rule (9) of Kerala Minor Mineral Concession Rules, 2015 vide QP No. 20/2017-18/OE/DOP/185/2018/1, dated 22.01.2018 which was valid up to 21.08.2018 and issued 100 number of Mineral Transit Passes to petitioner for transporting the ordinary Earth to KLDC work at Thrissur-Ponnani Kole area development work construction of Perumpuzhathodu. On expiry of the above permit the petitioner informed this office on 28.02.2018 that, due to some local problem a few quantity of ordinary earth was removed from the permitted area by issuing 04 transit passes. The petitioner also returned the unused transit passes before this respondent._ _6. Meanwhile the petitioner sent an application only to the 2nd respondent for renewal of the above permit in Form A dated 12.11.2018 through registered post without relevant documents. The 2nd respondent received the application on 23.11.2018 that is after filing of the writ petition. Since the validity of the environmental clearance expired on 02.07.2018 the 2nd respondent informed the petitioner vide registered letter No.DOP/3200/2018/A1, dated 24.11.2018 to submit_ **WP(C).No.37177 OF 2018(V)** **4** _renewed environmental clearance, latest possession certificate and application fee for Rs.1,000/- remitted in Government Treasury through counter signed chalan issued by the 2[nd] respondent._ _7. Moreover, the contention of the petitioner in paragraph 12 of the writ petition the petitioner approached for renewal of permit before filing of the writ petition is incorrect. In fact, he never approached this office as stated in the writ petition. Hence, this Ext.P4 application cannot be considered without the relevant documents.” (underline supplied)_ ## 4. In **Vinod Kumar v. District Geologist and others** **[2019 (3) KHC 79]** in the context of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015, this Court held that if the application made seeking permission under sub-rule (2) of Rule 14 for mineral transit pass is not supported by the mandatory documents as per the proviso to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of subrule (3) of Rule 14, it cannot be said that there is any failure on the part of the District Geologist in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus for considering that application. When the application made by **WP(C).No.37177 OF 2018(V)** **5** the petitioner is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the District Geologist to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law. Paragraphs 9 to 16 of the said decision read thus; “9. A reading of the provisions under sub-rules (2) and (3) of Rule 14 of the Kerala Minor Mineral Concession Rules make it explicitly clear that an application for mineral transit passes for transportation of ordinary earth shall be accompanied by a valid building permit for construction of building, obtained from the Local Self Government authority concerned; land development permit obtained from the Local Self Government authority concerned, in cases where the levelling of the land and extraction of earth is involved; and possession and enjoyment certificate of the land issued by the Village Officer concerned. As per the second proviso to sub-rule (2), in cases where the levelling of the land and extraction of ordinary earth is involved, the building permit shall be accompanied by an approved building plan obtained from the Local Self Government authority concerned, which shall contain the area of the land to **WP(C).No.37177 OF 2018(V)** **6** be developed for the construction of the building and quantity of ordinary earth to be extracted for such construction. 10. As per sub-rule (3) of Rule 14, a person who applies for mineral transit passes for transportation of ordinary earth under Rule 14 shall also submit along with the application, a sworn affidavit in stamped paper to the effect that he will carry out the proposed construction as per the building plan and building permit and shall complete at least the construction of basement of the building within one year from the date of issuance of mineral transit passes and intimate the same to the competent authority. 11. In the instant case, the fact that Ext.P3 application made by the petitioner before the 1[st] respondent for issuance of mineral transit passes is not supported by any of the documents as per the mandate of the provisos to sub-rule (2) of Rule 14 and also an affidavit as per the mandate of sub-rule (3) of Rule 14 of the Kerala Minor Mineral Concession Rules is not in dispute. Though Ext.P3 application is one dated 04.02.2019, the same was sent by speed post to the office of the 1[st] respondent only on 20.02.2019, as evidenced by Ext.R1(a) envelop, which was received in the office of the said respondent only on 23.02.2019. The said fact is also not in dispute. During the course of arguments, the submission made by the learned counsel for the petitioner is that the petitioner is prepared to produce **WP(C).No.37177 OF 2018(V)** **7** Ext.P1 building permit, Ext.P2 development permit and also an affidavit as per the mandate of sub-rule (3) of Rule 14 before the 1[st] respondent, within a time limit to be fixed by this Court. 12. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145]** a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Paragraph 15 of the said decision reads thus; " **15.** .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their **WP(C).No.37177 OF 2018(V)** **8** jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodiancum-Managing Officer [1966 (1) SCR 120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." (underline supplied) 13. In **Oriental Bank of Commerce v. Sunder Lal** **WP(C).No.37177 OF 2018(V)** **9** **Jain [(2008) 2 SCC 280]** the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. Paragraphs 11 and 12 of the said decision read thus; " **11.** The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. : **Note 187** .- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. **WP(C).No.37177 OF 2018(V)** **10** Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed. **Note 192** .- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. **Note 196** .- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which **WP(C).No.37177 OF 2018(V)** **11** have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. **Note 206** .- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. **12.** These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR** **WP(C).No.37177 OF 2018(V)** **12** **1977 SC 2149]** , after referring to the earlier decisions in **Lekhraj Satramdas Lalvani v. N.M. Shah [AIR 1966 SC 334]** , **Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210]** and **Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]** , this Court observed as follows in paragraph 15 of the reports: "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right **WP(C).No.37177 OF 2018(V)** **13** under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31[st] March, 2000 and apply RBI guidelines to their case." 14. **In State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court **WP(C).No.37177 OF 2018(V)** **14** when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. Paragraph 10 of the said decision reads thus; " **10.** Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus **WP(C).No.37177 OF 2018(V)** **15** may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. ......." 15. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law. Vide: State of Punjab v. Renuka Singla [(1996) 8 SCC 90], State of U.P. v. Harish Chandra [1996 (9) SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. **WP(C).No.37177 OF 2018(V)** **16** ## Ashrafulla Khan [(2002) 2 SCC 560]. 16. In the instant case, as borne out from the pleadings and materials on record, the petitioner filed this writ petition before this Court on 22.02.2019, even before the receipt of Ext.P3 application for mineral transit passes by the 1[st] respondent. Moreover, the said application is not supported by the mandatory documents, as per the provisos to subrule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14. In such circumstances, it cannot be said that there is any failure on the part of the 1[st] respondent in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of mandamus for consideration of Ext.P3 application. When Ext.P3 application made by the petitioner is not one supported by the mandatory documents as per the provisos to sub-rule (2) of Rule 14 and also an affidavit as per the mandate of subrule (3) of Rule 14, this Court cannot direct the 1[st] respondent to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law.” 5. As can be seen from Exts.P4 and P6 receipts, the petitioner submitted Exts.P3 and P5 applications by speed post on 13.11.2018 and thereafter, moved this writ petition **WP(C).No.37177 OF 2018(V)** **17** before this Court on 14.11.2018 seeking a writ of mandamus for consideration of those applications. Ext.P5 application was not even supported by relevant documents. For renewal of quarrying permit, the petitioner has to obtain Environmental Clearance from the additional 4[th] respondent State Level Environment Impact Assessment Authority by submitting an online application with necessary documents. 6. In view of the law laid down in the decision referred to supra, conclusion is irresistible that the petitioner is not entitled for the reliefs sought for in this writ petition for the reason that Ext.P5 application made by the petitioner is not supported by the relevant documents and he has also not obtained Environmental Clearance from the additional 4[th] respondent by submitting online application. When the applications made by the petitioner are not in accordance with law, this Court cannot direct the respondents to consider those applications in contravention of the statutory provisions, as no mandamus can be issued to do something contrary to law. In the result, this writ petition fails and the same is **WP(C).No.37177 OF 2018(V)** **18** accordingly dismissed. It is made clear that this judgment will not stand in the way of the petitioner approaching the appropriate authorities, by filing proper applications supported by necessary documents. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/8/8 **WP(C).No.37177 OF 2018(V)** **19** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1**|**TRUE COPY OF THE ENVIRONMENTAL**| ||**CLEARANCE CERTIFICATE NO.34/2017/OE**| ||**DATED 03.01.2018**| |**EXHIBIT P2**|**TRUE COPY OF THE QUARRYING PERMIT**| ||**NO.20/2017-18/OE/DOP/185/2018/A1**| ||**DATED 22.01.2018**| |**EXHIBIT P3**|**TRUE COPY OF THE APPLICATION TO R1**| ||**DATED 12.11.2018**| |**EXHIBIT P4**|**TRUE COPY OF THE POSTAL RECEIPT**| ||**DATED 13.11.2018**| |**EXHIBIT P5**|**TRUE COPY OF HE APPLICATION TO R2**| ||**DATED 12.11.2018**| |**EXHIBIT P6**|**TRUE COPY OF THE POSTAL RECEIPT**| ||**DATED 13.11.2018**|