W.P.(C) No.18419/2013 (J. Anandan v. State of Kerala and Others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 25TH DAY OF OCTOBER 2013/3RD KARTHIKA, 1935** ## **WP(C).No. 18419 of 2013 (B)** **---------------------------------------** **PETITIONER(S):** **--------------------------** **J. ANANDAN, S/O.JANARDANAN, AGED 49 YEARS KATTUMADATHIL HOUSE, PALLIKKAL, NADUVILE MURI BHARANIKKAVU VILLAGE, MAVELIKKARA TALUK ALAPPUZHA DISTRICT. ,** **BY ADVS.SRI.C.S.AJITH PRAKASH SRI.PAUL C THOMAS** **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY SECRETARIAT THIRUVANANTHAPURAM.** **2. THE ADDITIONAL CHIEF SECRETARY AND THE APPELLATE AUTHORITY INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **3. THE COMMISSIONER OF LAND REVENUE, MUSEUM JUNCTION, THIRUVANANTHAPURAM - 695 033.** **4. THE DIRECTOR OF MINING AND GEOLOGY THIRUVANANTHAPURAM - 4.** **5. THE DISTRICT COLLECTOR, PATHANAMTHITTA.** **6. GEOLOGIST, DISTRICT OFFICE, PATHANAMTHITTA.** **7. S. SUJATHAN, S/O.SUKUMARAN KOTTAPURATHU HOUSE, KOTTARKAVU MURI MAVELIKKARA VILLAGE, ALAPPUZHA DISTRICT.** **R1 TO R6 BY GOVERNMENT PLEADER SRI.JOSEPH GEORGE R7 BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss** ## **W.P.(C) NO.18419/2013** ## **APPENDIX** ## **PETITIONERS EXHIBITS** ## **P1:- COPY OF THE NON OBJECTION CERTIFICATE DTD. 23.12.2005.** ## **P2:- COPY OF THE LEASE DEED DTD. 15.11.2006.** **P3:- COPY OF THE LEASE DEED DTD. 14.8.2008, GRANTING THE RIGHT TO EXTRACT GRANITE DIMENSION STONES FROM R.S NO.288/1.** **P4:- COPY OF THE APPLICATION DTD. 9.9.08 (WITHOUT THE ANNEXURES) SUBMITTED BEFORE THE 4TH RESPONDENT SEEKING TO TRANSFER THE LEASE IN THE NAME OF M/S.ATLAS MINES AND GRANITES (I) LTD.** **P5:- COPY OF HE REQUEST DTD 13.11.12008 BEFORE THE 5TH RESPONDENT SEEKING NOC FOR TRANSFERRING THE QUARRYING LEASE IN FAVOUR OF M/S. ATLAS MINES AD GRANTES (INDIA) LTD.** ## **P6:- COPY OF THE LETTER DTD. 29.4.2009.** **P7:- COPY OF THE APPLICATION DTD. 24.7.09 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT AND 27.7.2009.** **P8:- COPY OF THE APPLICATION DTD. 27.7.2009 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** ## **P9:- COPY OF THE PLAINT IN OS. NO.243/2009 FILED BY THE PETITIONER.** ## **P10:- COPY OF THE LETTER DTD. 4.11.2009.** **P11:- COPY OF THE LETTER DTD. 11.11.2009 WITH ITS EXHIBITS.** **P12:- COPY OF THE ORDER NO.C7-46360/2008 DTD. 16.11.2009.** **P13:- COPY OF THE PETITION DTD. 25.11.2009 BEFORE THE 5TH RESPONDENT SEEKING TO REVIEW THE ORDER DTD. 16.11.2009.** **P14:- COPY OF THE ORDER DTD. 12.10.2010 ISSUED BY THE 3RD RESPONDENT.** ## **P15:- COPY OF THE LETTER DTD. 4.10.2010.** **P16:- COPY OF THE PROCEEDINGS DTD. 16.7.2012 .** **P17:- COPY OF THE PROCEEDINGS DTD. 4.4.2013 OF THE 3RD RESPONDENT.** **P18:- COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **P19:- COPY OF THE APPLICATION DTD. 7.6.2013 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.** **tss** ## **W.P.(C) NO.18419/2013** **P20:- COPY OF THE BALANCE SHEET OF ANANDA MARBLES OF THE YEAR 2006 CERTIFIED BY THE CHARTERED ACCOUNTANT DTD. 31.3.2005.** **P21:- COPY OF THE BALANCE SHEET OF ANANDA MARBLES OF THE YEAR 2006 CERTIFIED BY THE CHARTERED ACCOUNTANT DTD. 20.10.2006.** **P22:- COPY OF THE PAN CARD ISSUED BY THE INCOME TAX DEPARTMENT WITH NUMBER ACUPJ 4272D.** **P23:- COPY OF THE REMITTANCE RECEIPTS OF INCOME TAX TO THE INCOME TAX DEPART ENT FOR THE ASSESSMENT YEAR 2005-2006 AND 2006-07.** **P24:- COPY OF THE ALLOTMENT OF IMPORT EXPORT CODE ISSUED BY THE OFFICE OF THE JOINT DIRECTOR GENERAL OF FOREIGN TRADE.** ## **P25:- COPY OF THE SETTLEMENT DTD. 8.6.2007 BETWEEN THE PETITIONER AND 7TH RESPONDENT.** **P26:- COPY OF THE INVOICES WHICH WOULD SHOW THE TRANSACTION OF THE GRANITES TO M/S.DELCROW TRADING COMPANY, MANAMA BAHRAIN.** **P27:- COPY OF THE INTERROGATORY DTD. 23.5.2011 FILED BY THE PETITIONER IN EXT.P9 SUIT INSTITUTED BY HIM.** **P28:- COPY OF THE ANSWER GIVEN TO THE INTERROGATORY BY THE 7TH RESPONDENT DTD. 7.12.2012.** **P29:- COPY OF THE POSSESSION NOTICE ISSUED BY THE DENA BANK IN MATHRUBHUMI DAILY DTD. 19.12.2009.** **P30:- COPY OF THE PLAINT IN OS. 262/09 FILED BEFORE THE SUB COURT, MAVELIKARA.** **P31:- COPY OF THE QUERY SUBMITTED BY THE PETITIONER TO THE SENIOR GEOLOGIST UNDER THE RTI ACT AND ITS REPLY DTD. 19.11.2010.** **P32:- COPY OF THE DOCUMENT DTD. 25.6.2013 SHOWING THE CLEARNACE OF THE LIABILITY ISSUED BY THE STATE BANK.** **P33:- COPY OF THE JUDGMENT IN CC.474/09 DTD. 31.3.2012 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM.** **P34:- COPY OF THE CERTIFICATE OF INCORPORATION IS SHOWING THE DATE OF INCORPORATION.** **P35:- COPY OF THE BALANCE SHEET AS ON 31.3.2009 OF ATLAS MINES AND GRANITES (INDIA) LTD. OBTAINED FROM THE REGISTRAR OF COMPANIES DTD. 20.8.2013.** **tss** ## **W.P.(C) NO.18419/2013** ## **RESPONDENTS EXHIBITS** **R7(a):- COPY OF JUDGMENT DTD. 12.10.2010 IN WP(C) 24555/10 OF THIS HON'BLE COURT.** **R7(b):- COPY OF APPLICATION MADE BY THE 7TH RESPONDENT BEFORE THE 5TH RESPONDENT ON 30.12.2009.** **R7(c):- COPY OF REPRESENTATION DTD. 21.6.2010 MADE BEFORE THE 5TH RESPONDENT BY THE 7TH RESPONDENT.** **R7(d):- COPY OF APPLICATION SUBMITTED BY THE 7TH RESPONDENT BEFORE THE 5TH RESPONDENT ON 20.4.2010.** **R7(e):- COPY OF AFFIDAVIT SWORN TO BY THE PETITIONER ON 5.2.2011.** **R7(f):- COPY OF DIRECTION DTD. 31.3.2011 GIVEN BY CENTRAL NAZIR TO AMIN TO EFFECT ATTACHMENT AS PER ORDER IN I.A.21/11 IN OS. 262/09 ON THE FILE OF THE COURT OF SUB JUDGE MAVELIKKARA.** **R7(g):- COPY OF NOTICE DTD. 16.12.2008 UNDER RULE 8 (1) OF THE SARFAESI RULES ISSUED BY THE STATE BANK OF INDIA, ALAPPUZHA BRANCH.** **R7(h):- COPY OF PARTNERSHIP DEED DTD. 1.12.2010 ENTERED INTO BETWEEN NOBLE JOHN AND THE PETITIONER.** **R7(i):- COPY OF JUDGMENT DTD. 5.6.2012 IN CC.41.11 OF THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS III MAVELIKARA.** **R7(j):- COPY OF COUNTER-AFFIDAVIT (WITHOUT ANNEXURES) FILED BY TE 7TH RESPONDENT BEFORE THE 3RD RESPONDENT.** **R7(k):- COPY OF AGREEMENT DTD. 10.10.2009 ENTERED INTO BETWEEN THE PETITIONER AND 37 OPTHER CREDITORS.** **R7(l) :- COPY OF AGREEMENT DTD. 11.4.2012 ENTERED INTO BETWEEN THE PETITIONER AND 4 CREDITORS.** **R7(m):- COPY OF REPORT OF AMIN DTD. 4.4.2011 PREPARED EFFECTING ATTACHMENT AS PER ORDER IN IA. 121/11 IN OS. 262/09 OF SUB COURT MAVELIKARA.,** **R7(n):- COPY OF SALE DEED DTD. 24.5.2013 EXECUTED BY THE PETITIONER IN FAVOUR OF R.RAMACHANDRAN.** **R7(o):- COPY OF G.O.(RT) NO.1143/2012/ID DTD. 30.7.2012 OF IST RESPONDENT.** **tss** ## **W.P.(C) NO.18419/2013** **R7(p):- COPY OF JUDGEMENT DTD. 19.12.2011 IN WPCX.26773/11 OF THIS HON'BLE COURT.** **R7(q):- COPY OF AGREEMENT DTD 8.6.2007 ALONG WITH THE ANNEXURES .** **R7(r):- COPY OF COMMUNICATION DTD. 28.8.2009 ISSUED TO THE 7TH RESPONDENT BY THE OFFICE OF 4TH RESPONDENT.** **R7(s):- COPY OF SALE DEED NO.391/09 DTD. 4.4.2009 RESPECT OF PROPERTIES IN SY. NO.248/2 AND 248/7 OF KOODAL VILLAGE.** **R7(t):- COPY OF POSSESSION ISSUED BY VILLAGE OFFICER, KOODAL DTD 1.8.2011 ALONG WITH TAX RECEIPTS EVIDENCING SUCH POSSESSION.** **R7(u):- COPY OF LETTER NO.1480/DOPTA/M08 DTD. 20.9.2012 OF THE 6TH RESPONDENT.** **R7(v):- COPY OF LETTER NO.1480/DOPTA/M/08 DTD. 12.10.2012 OF THE 6TH RESPONDENT.** **R7(w):- COPY OF ORDER NO.DOCEE/E3/2897/2012 DTRD. 8.8.2012 ISSUED BY DIRECTOR, DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE, GOVERNMENT OF KERALA AND TYPED COPY OF THE SAME.** ## **TRUE COPY** ## **P.A. TO JUDGE** **tss** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) No.18419 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of October, 2013 ## **JUDGMENT** The issue involved in this case is with regard to the correctness and sustainability of Exts.P12, P14, P16 and P17 orders passed by the respondents 3 and 5 with regard to the cancellation of Ext.P1 NOC issued to the petitioner, so as to have quarrying operations in the concerned property, which was leased out to the petitioner as per Ext.P2 and P3 lease deeds. 2. The sequence of events narrated in the writ petition shows that the petitioner, with intent to carry out quarrying operation in the land comprised in Re-Sy.No.288/1 and 251/1 in Block No.32 of Koodal Village in Adoor Taluk, Pathanamthitta District, which exclusively belongs to the Government, entered into a lease arrangement with the Government, as borne by Ext.P6 lease deed executed in 2006 which is valid till 2014 and Ext.P3 lease deed in 2008 which is valid till 2018 respectively. The petitioner had already been W.P.(C)No.18419/2013 2 issued necessary NOC by the fifth respondent as early as on 23.12.2005 and it was based on the said NOC that Exts.P2 and P3 lease deeds were executed. 3. In the meanwhile, the petitioner with intent to expand the business entered into some arrangement with the 7[th] respondent and a Company was formed in accordance with the relevant provisions of the Companies Act, 1956. The petitioner submitted Ext.P4 application for giving consent to transfer the lease in the name of the Company before the fourth respondent and a similar request was also preferred before the fifth respondent/District Collector vide Ext.P5. This was in view of the requirement as per Clause 11 of Ext.P2, that 'prior permission' was required for transfer of the lease. While the above proceedings were pending, there arose a dispute between the petitioner and the 7[th] respondent, in furtherance to which, the petitioner approached the fifth respondent by filing Ext.P7 application dated 24/07/2009 seeking not to give any effect to Ext.P5, as he did not have any intention to transfer the lease in favour of the Company. A similar representation was filed before the fourth respondent as well, as borne by Ext.P8. The matter W.P.(C)No.18419/2013 3 was considered by the fifth respondent, who issued Ext.P12, cancelling Ext.P1 NOC itself. 4. The petitioner approached the first appellate authority (third respondent) who considered the appeal and passed Ext.P14 order, whereby the impugned order was set aside and the matter was remanded, directing the fifth respondent to reconsider the matter, also taking note of the financial soundness of the petitioner, title of land and such other aspects. Pursuant to the remand, the matter was reconsidered by the fifth respondent, who issued Ext.P16 order dated 16/07/2012, whereby the stand already taken vide Ext.P12 was affirmed. This order was challenged before the third respondent, who declined interference as per Ext.P17 order dated 04/04/2013. Being aggrieved of the same, the petitioner has already approached the second respondent by way of Ext.P18 second appeal and the same is pending. The petitioner has simultaneously approached this Court by filing this writ petition in virtue of the nature of dispute and the immediate necessity to have the grievance redressed. 5. A detailed counter affidavits have been filed by the W.P.(C)No.18419/2013 4 concerned respondents producing the relevant documents. 6. Heard the learned Government Pleader as well as the learned counsel for the 7[th] respondent. 7. The learned counsel for the petitioner seeks to place reliance on the decision reported in **1998 ( 8) SCC 1 (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others )** with regard to the proposition that, alternative remedy cannot be a bar, for invoking the jurisdiction of this Court under Article 226 of the Constitution of India. 8. The learned counsel for the 7[th] respondent submits that the writ petition itself is not liable to be entertained, more so when the petitioner has already sought to avail the statutory remedy by way of Ext.P18, which is still pending. Reliance is sought to be placed on the decisions reported in **1995(1) SCC 642 ( Bombay Metropolitan Region Development Authority, Bombay v. Gokak Patel Volkart Ltd. and Others** ( paragraph 12 & 13) and in **2004 ( 7) SCC 166 ( S.J.S.Business Enterprises (P) Ltd. v. State of Bihar and Others)** ( paragraphs 14 and 15). The learned counsel also points out that, by W.P.(C)No.18419/2013 5 virtue of Ext.R7(a) judgment in W.P.(C)No.24555/2010, the request of the petitioner was declined to be entertained, referring to the fact that disputed questions of facts were there and as such the matter had to be adjudicated by the competent Civil Court, more so in view of the pendency of the civil suits before the concerned Court. It is also brought to the notice that O.S.No.243/2009 preferred by the petitioner to set aside the sale deed executed by the petitioner in favour of the Company and O.S.No. 262/2009 preferred by the 7[th] respondent for realisation of the amount from the petitioner and also causing attachment of the property are pending consideration. By virtue of the verdict passed by this Court on 27.9.2013 in Tr.P(C) No. 360/2013, joint trial has been ordered and both the matters are directed to be finalised within six months. This being the position, no interference is warranted at the hands of this Court, submits the learned counsel. 9. The learned Government Pleader seeks to justify the orders passed by the concerned authorities with reference to the merits of the case. It is also stated that, in view of the subsequent developments, particularly, the transfer of the land originally belonged to the W.P.(C)No.18419/2013 6 petitioner, there is no access to the Government property, which forms the subject matter of Exts.P2/P3 lease. The inference arrived at with regard to the financial status of the petitioner is also sought to be asserted. 10. The crucial question to be considered is as to the nature and requirement of the application preferred by the petitioner vide Ext.P5, which forms the basis for having issued Ext.P16 order by the fifth respondent. Eventhough the petitioner had requested to issue NOC for transferring the lease in favour of the Company formed between the petitioner and the 7[th] respondent vide Ext.P5, it was subsequently sought not to be acted upon as per Ext.P7 dated 2707/2009. It was after considering these applications, that Ext.P16 order came to be passed by the fifth respondent, whereby Ext.P1 NOC itself was cancelled. Going by the contents of Ext.P16, it is seen that there was no proposal to have the NOC cancelled at any point of time and there is no requirement/demand/request made from any corner in this regard. No reference is made to any such notice having issued to the petitioner by the fifth respondent before passing Ext.P16 cancelling the NOC . W.P.(C)No.18419/2013 7 As such, this by itself cuts the very root of the cause of action and the sequence of events leading to various proceedings. In view of this basic infirmity, this Court finds that the decisions rendered by the Apex court in **1995(1) SCC 642 ( Bombay Metropolitan Region Development Authority, Bombay v. Gokak Patel Volkart Ltd. and Others** and **2004 ( 7) SCC 166( S.J.S.Business Enterprises (P) Ltd. v. State of Bihar and Others)** do not place any hurdle and the matter has to be considered by the original authority himself for not having satisfied the requisite norms, particularly for not having given any effective opportunity of hearing before cancelling Ext.P1 NOC. 11. Accordingly, all the impugned orders are set aside and the fifth respondent is directed to reconsider the matter after issuing proper notice to the parties concerned and finalise the proceedings accordingly. It is made clear that, this will not prevent the fifth respondent from issuing notice to the petitioner as to why Ext.P1 NOC shall not be cancelled, by virtue of the subsequent developments and finalise the steps after giving an opportunity of hearing to him. It is also made clear that, if any violation has been committed by the W.P.(C)No.18419/2013 8 petitioner with regard to the terms of the lease, it is open for the concerned authorities to issue notice to the petitioner asking to explain why the lease deed shall not be cancelled. So also, if by virtue of the operation of law, the lease deed is not given effect to, the position shall be let known to the petitioner giving him an opportunity to explain. The proceedings as above shall be finalised at the earliest, at any rate within 'two months' from the date of receipt of a copy of this judgment. It is further made clear that, till the proceedings are finalised as above, and unless and until a valid NOC is issued and the lease deed is given effect, to have it continued, the quarrying operations shall not be conducted by any of the parties, including the petitioner as well as the 7th respondent. All these proceedings shall be subject to the outcome of the verdict to be passed by the Civil Court in O.S.No.243/2009 and O.S.No. 262/2009, in respect of which, a joint trial has been ordered by this Court in Tr.P.(C)No.360/2013. Writ petition is disposed of. sv. ## **P.R.RAMACHANDRA MENON JUDGE** W.P.(C)No.18419/2013 9