## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**TUESDAY, THE 13TH DAY OF OCTOBER 2020 / 21ST ASWINA, 1942**
## **WP(C).No.18726 OF 2020(M)**
**PETITIONER:**
**THANKACHAN M.S., AGED 58 YEARS S/O.SEBASTIAN, MATHALIKUNNEL HOUSE, KOOMBARA BAZAR P.O., KOODARANHI, KOZHIKODE DISTRICT.**
**BY ADV. SRI.BABU S. NAIR**
**RESPONDENT:**
**THE SENIOR GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, KOZHIKODE, PIN-673001.**
**R1 BY GOVERNMENT PLEADER**
**OTHER PRESENT:**
## **GP. PAUL ABRAHAM VAKKANAL**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-10-2020, THE COURT ON 13-10-2020 DELIVERED THE FOLLOWING:**
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## **P.B.SURESH KUMAR, J.**
## **------------------------------------W.P.(C) No.18726 of 2020**
**-------------------------------------Dated this the 13th day of October, 2020**
## **JUDGMENT**
The petitioner owns a granite quarry. After obtaining all the requisite permissions and licences including environmental clearance, the petitioner applied for and obtained Ext.P1 quarrying permit from the respondent on 14.03.2018 for extraction of 14,630 metric tones of granite stones from his quarry. The quarrying permit was valid till 13.03.2019. The petitioner had to pay a sum of Rs.3,51,120/- towards royalty and Rs.35,112/- towards contribution to the Quarry Safety Fund in the matter of obtaining Ext.P1 quarrying permit. On 14.03.2018, in terms of the interim order passed by this court in W.P.(C) No.8644 of 2018 instituted by one Abdul Salam, this court restrained the petitioner from conducting the operations in his quarry. The case set out by the petitioner in
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W.P.(C) No.8644 of 2018 was that the petitioner was not entitled to environment clearance having regard to the proximity of his quarry from the nearby forest. Pursuant to the said interim order, the respondent issued Ext.P4 stop memo to the petitioner, directing him to stop the activities in the quarry. In the light of the interim order passed by this court and the stop memo, the petitioner could not operate the quarry on the strength of Ext.P1 quarrying permit. W.P.C) No.8644 of 2018 was disposed of by this Court in terms of Ext.P5 judgment on 29.01.2019, directing the State Environmental Impact Assessment Authority (the SEIAA) to consider whether the petitioner was entitled to environmental clearance having regard to the proximity of the quarry to the nearby forest. As the environmental clearance obtained by the petitioner was due to expire on 04.12.2019, the petitioner preferred an application in the meanwhile for renewal of the same. Ext.P6 is the order passed by the SEIAA on 04.11.2019 pursuant to the direction issued by this court in Ext.P5 judgment. In terms of Ext.P6 order, the SEIAA did not interfere with the environmental clearance, on the basis of which the petitioner was issued Ext.P1 quarrying permit. As per the said
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order, the SEIAA has renewed the environmental clearance granted to the petitioner by another period of five years. The term of Ext.P1 quarrying permit expired in the meanwhile on 13.03.2019. As the petitioner could not conduct quarrying operations on the strength of Ext.P1 quarrying permit, he preferred an application before the respondent to extend the term of Ext.P1 quarrying permit for a term equal to the term during which he could not operate quarry on the strength of Ext.P1 permit for reasons not attributable to him. The said application has now been rejected by the respondent in terms of Ext.P9 order, stating that the royalty and other charges collected in terms of the provisions contained in Kerala Minor Mineral Concessions Rules, 2015 (the Rules) once cannot be refunded and as such, the petitioner may, if so advised, prefer an application for grant of a fresh quarrying permit and if he is found eligible for a fresh quarrying permit, he will be granted the same, after collecting the royalty and charges payable. Ext.P9 is under challenge in the writ petition.
2. A counter affidavit has been filed on behalf of the respondent. In the counter affidavit, the respondent has reiterated
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the stand in the impugned order. In addition, it is stated by the respondent that orders in the nature of Ext.P9 are appealable under Rule 98(1) of the Rules and therefore, the writ petition is not maintainable.
3. Heard the learned counsel for the petitioner as also the learned Government Pleader.
4. The fact that the petitioner has been issued Ext.P1 quarrying permit after collecting the requisite charges including the royalty, is not disputed. Similarly, the fact that the petitioner could not extract granite stones from the quarry on the strength of Ext.P1 quarrying permit in the light of the interim order passed by this Court in W.P.(C). No.8644 of 2018 is also not in dispute. As noted, the SEIAA did not interfere with the environmental clearance challenged in W.P.(C) No.8644 of 2018 pursuant to the judgment in the said case, as per Ext.P6 order. In other words, the interim order in W.P.(C) No.8644 of 2018, on the basis of which the petitioner was interdicted from conducting quarrying operations on the strength of Ext.P1 quarrying permit was unjustified. In the said circumstances, according to me, the maxim _'actus curiae neminem gravabit'_
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meaning an act of court shall prejudice no man applies squarely to the facts of this case. Needless to say that the petitioner has to be compensated. In **Velu V.K. and Others v. Anil Kumar and Others** , 2017 (2) KHC 911, on similar facts, this court directed validation of the quarrying permit of the persons involved in the said case for a term equal to the term during which they had to stop their activities pursuant to the stop memos issued to them.
5. True, Rule 10 of the Rules dealing with conditions subject to which quarrying permits are to be issued under the Rules, provides that a permit holder shall not be eligible for refund of any amount paid by way of application fee, rent, royalty or tax, as the case may be. The said Rule may not have any application to the facts of the present case as the petitioner is not claiming refund of any amounts paid for obtaining Ext.P1 permit. Instead, he is only seeking re-validation of the term of the permit. Similarly, in a case of this nature, I do not think that the petitioner would get any relief in an appeal under Rule 98 of the Rules.
In the said view of the matter, the writ petition is allowed and the respondent is directed to validate Ext.P1 permit for
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a term equal to the term during which the petitioner could not operate the quarry on the strength of the said permit without insisting any further payment. This shall be done within one month from the date of receipt of a copy of this judgment.
**Sd/P.B.SURESH KUMAR JUDGE**
ds 06.01.2020
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE QUARRYING PERMIT ISSUED TO THE PETITIONER BY THE RESPONDENT DATED 14.03.2018.**
**EXHIBIT P2 TRUE COPY OF THE CHALAN DATED 14.03.2018 FOR AN AMOUNT OF RS.3,51,296/-**
**EXHIBIT P3 TRUE COPY OF THE CHALAN DATED 14.03.2018 FOR AN AMOUNT OF RS.35,112/-**
**EXHIBIT P4 TRUE COPY OF THE STOP MEMO ISSUED BY THE RESPONDENT DATED 16.03.2018. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 29.01.2019 IN W.P.(C)NO.30828/2017 OF THIS HON'BLE COURT. EXHIBIT P6 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE ISSUED BY THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY DATED 04.11.2019. EXHIBIT P7 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER DATED 02.12.2019 TO THE RESPONDENT. EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 09.12.2019 OF THIS HON'BLE COURT IN W.P(C)NO.33481/2019.**
**EXHIBIT P9 TRUE COPY OF THE ORDER PASSED BY THE RESPONDENT DATED 19.02.2020 AS NO.39/2019-20/DOZ/M.2833/17.**
