Sudheesh A.T. v. Vengappally Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 30TH DAY OF JULY 2020 / 8TH SRAVANA, 1942** ## **WP(C).No.14752 OF 2020(T)** ## **PETITIONER:** **SUDHEESH A.T., ADAKKATHOTTATHIL HOUSE,RATTAKUNDU, KUMBALERI.P.O, WAYNAD-673593.** **BY ADVS.** **SRI.ENOCH DAVID SIMON JOEL, SRI.RONY JOSE, SRI.GEORGE A.CHERIAN,SRI.LEO LUKOSE** ## **RESPONDENTS:** |**1**|**VENGAPPALLY GRAMA PANCHAYAT**| |---|---| ||**PINANGODE.P.O,WAYNAD-673121,**| ||**REPRESENTED BY ITS SECRETARY.**| |**2**|**SECRETARY,**| ||**VENGAPPALLY GRAMA PANCHAYAT,**| ||**PINANGODE.P.O, WAYNAD-673121.**| |**3**|**REVENUE DIVISIONAL OFFICER,**| ||**REVENUE DIVISIONAL OFFICE,**| ||**MANANTHAVADI.P.O,WAYNAD-670645.**| **SRI.MANOJ RAMASWAMY, STANDING COUNSEL FOR R1 & R2 SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R3** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------- W.P. © No. 14752 of 2020 --------------------------------------Dated this the 30[th] day of July, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: The petitioner herein has obtained all necessary licenses for operating his quarry. Within 2 weeks of issuance of trade license, the Secretary of Panchayat has issued Ext.P-5 stop memo directing the petitioner to stop all activities and also to show cause as to why the license should not be cancelled. According to the petitioner, the sole reason for issuing Ext.P-5 is Ext.P-6 letter issued by the 3[rd] respondent RDO pointing out that the land in which the quarry is being operated is an exempted land under Section 81 of the Kerala Land Reforms Act and conversion of such land for any other purpose is prohibited. The petitioner was also issued with certificates by the revenue authorities stating that the land is not one that is covered under the Kerala Land Reforms Act. It is in the light of the abovesaid averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: “ - _i. Issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Ext.P5 and quash the same._ _ii. 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.”_ W.P. © No. 14752 of 2020 **==> picture [19 x 9] intentionally omitted <==** 2. Heard Sri.Enoch David Simon Joel, learned counsel appearing for the petitioner, Sri.Manoj Ramaswamy, learned counsel appearing for R-1 & R-2 (Vengappally Grama Panchayat) and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the R-3. 3. The petitioner has already been issued Ext.P-3 trade license dated 26.6.2020 for the year 2020-2021 in respect to the running of his quarry, for which Ext.P-4 quarrying permit dated 6.7.2020 has also been issued by the District Geologist concerned, which is stated to be valid till 5.7.2021. Now, petitioner has been confronted with Ext.P-5 stop memo dated 14.7.2020 issued by the 2[nd] respondent Secretary of Grama Panchayat directing the petitioner to stop running of his quarry, pursuant to Ext.P-6 letter dated 13.7.2020 issued by the 3[rd] respondent RDO, wherein it is stated that the subject property where the petitioner is running the quarry is the one which has secured the benefit of exemption under Sec. 81 of the Kerala Land Reforms Act. Therefore, the use of the subject property for running said quarry is illegal etc. The petitioner would contend that, even if it is assumed that the quarry W.P. © No. 14752 of 2020 ..4.. is being operated in exempted land in terms of Sec.81 of the Kerala Land Reforms Act, none of the provisions under the Kerala Land Reforms Act, prohibit conversion of an exempted land for any purpose other than the exempted purposes and the only consequence of using the land for a purpose other than the exempted purpose is that the land would lose the benefit of exemption in terms of Sec.81 of the Kerala Land Reforms Act and consequently the land belongs to the petitioner is an exempted land and the proceedings under Sec.81 of the Kerala Land Reforms Act and the Kerala Land Reforms Ceiling Rules, 1970, is be initiated by the Land Board and even in such an event the holder of land has a statutory option either to retain the control of the land or to surrender other lands in his possession. 4. In this regard, the petitioner's counsel has placed reliance on the judgment of Full Bench of this Court in the case in _**Mathew K.Jacob v. District Environment Impact Assessment Authority [2018 (4) KLT 913],**_ wherein it has been held by the Full Bench that, any class of land earlier exempted in the ceiling case can be converted into any class of land not liable W.P. © No. 14752 of 2020 **==> picture [18 x 9] intentionally omitted <==** to be exempted under Explanation 2 to Section 87 of the Act, and the consequence is that, the benefit of exemption under Section 87 of the KLR Act would be lost and the extent could be added to the account of the assessee in determination of ceiling area. 5. After hearing the both sides, it is by now well established that the continued use of the land for a purpose other than the exempted purposes, will not by itself prejudice the rights of the competent revenue officials concerned to initiate and finalise the proceedings in terms of the provisions contained in the Kerala Land Reforms Act. In such a case, the contentions of both the landlord concerned and the revenue are to be decided in such appropriate proceedings in the manner known to law. In other words it is ordered and clarified that, the running of the quarry by the petitioner in the present land, even if it is assumed that it is the land which secured benefits and exemptions in terms of Sec.81 of Kerala Land Reforms Act, will not by itself prejudice the contentions of the competent revenue official concerned including the Land Board to initiate and finalise the proceedings in the Kerala Land Reforms Act. Since, petitioner has got a case that in W.P. © No. 14752 of 2020 ..6.. the impugned Ext.P-5 stop memo has been issued behind the back of the petitioner, and without affording reasonable opportunity of being heard to the petitioner, accordingly it is ordered that the impugned Ext.P-5 will stand quashed and the matter will stand remitted to the 2[nd] respondent Secretary of Vengappally Grama Panchayat for consideration and decision afresh in the light of the dictum laid down by the Full Bench of this Court in _**Mathew K.Jacob's**_ case supra. The 2[nd] respondent Secretary of Vengappally Grama Panchayat may afford reasonable opportunity of being heard to the petitioner, and may pass fresh orders on the matter taking note of the abovesaid observations made by this Court herein above. Such orders may be passed within 3 weeks from the date of receipt of a certified copy of this judgment. 6. It is made clear that, it will be open to the 2[nd] respondent Secretary of Grama Panchayat to clarify in such proceedings that the continuance of trade license to run the quarry in the said land will be without any prejudice to the rights of the competent revenue official concerned to initiate and finalize proceedings in terms of the Kerala Land Reforms Act, for violation W.P. © No. 14752 of 2020 **==> picture [18 x 9] intentionally omitted <==** of Section 81 thereof. 7. The petitioner will produce certified copies of this judgment along with copy of memorandum of this WP(C) with all exhibits to both the 2[nd] and 3[rd] respondents 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 MMG W.P. © No. 14752 of 2020 ..8.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CONSENT TO OPERATE DTD.22.01.2020 ISSUED BY THE POLLUTION CONTROL BOARD VALID TILL 31.12.2024. EXHIBIT P1(A) TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE DATED 31.12.2019 VALID TILL 30.12.2024 ISSUED BY THE SEIAA. EXHIBIT P1(B) TRUE COPY OF THE EXPLOSIVE LICENSE VALID TILL 31.03.2025.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 09.06.2020 IN WP(C)10569/2020 ON THE FILE S OF THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 29.06.2020 WITH NO.B3-617/2020 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE QUARRYING PERMIT DATED 06.07.2020 VALID TILL 05.07.2021 ISSUED TO THE PETITIONER. EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 14.07.2020 WITH NO.B3-617/2020 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P6 TRUE COPY OF THE LETTER DATED 13.07.2020 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE CERTIFICATE DATED 02.07.2018 ISSUED BY THE VILLAGE OFFICER,VENGAPPALLY. EXHIBIT P7(A) TRUE COPY OF THE CERTIFICATE DATED NIL ISSUED BY THE VILLAGE OFFICER, VENGAPPALLY.**