W.P.(C) Nos.25012/2013 & 8872/2018: M/S PLAKKATTU GRANITE (P) LTD. v STATE OF KERALA and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY ,THE 22ND DAY OF FEBRUARY 2019 / 3RD PHALGUNA, 1940** ## **WP(C).No. 25012 of 2013** ## **PETITIONER/S:** **M/S.PLAKKATTU GRANITE (P) LTD., PAYYANAMON P.O., KONNI, REPRESENTED BY ITS MANAGING DIRECTOR, JACOB THOMAS.** **BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SMT.TINA ALEX THOMAS SRI.ENOCH DAVID SIMON JOEL SRI.PAUL JACOB (P) SRI.RONY JOSE SRI.S.SREEDEV** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY,**| ||**DEPARTMENT OF INDUSTRIES,**| ||**GOVERNMENT SECRETARIAT,**| ||**TRIVANDRUM - 695 001.**| |**2**|**THE DIRECTOR,**| ||**MINING AND GEOLOGY,**| ||**DIRECTORATE OF MINING AND GEOLOGY,**| ||**PATTOM P.O., THIRUVANANTHAPURAM - 695 004.**| |**3**|**GEOLOGIST,**| ||**MINING AND GEOLOGY DEPARTMENT,**| ||**PATTOM P.O., THIRUVANANTHAPURAM - 695 004.**| ||**R1 - R3 BY SRI. RANJITH THAMPAN, ADDITIONAL ADVOCATE**| ||**GENERAL**| ||**SRI. M.H. HANIL KUMAR, SPECIAL GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.02.2019, ALONG WITH WP(C).8872/2018, THE COURT ON 22.02.2019 DELIVERED THE FOLLOWING:** W.P.(C) Nos.25012/13 & 8872/18 2 ## **JUDGMENT** Petitioner in the captioned writ petitions is one and the same company incorporated under the Companies Act and the subject matter relates to the alleged illegal quarrying operations conducted by the petitioner, challenge made against the demands raised, review of orders, and consequential recovery action initiated under the Kerala Revenue Recovery Act. Therefore, I heard them together and propose to deliver this common judgment. The pleadings and the documents referred to in W.P.(C) No.25012 of 2013 are relied upon and the findings in the said writ petition will clearly apply to the connected writ petition also. 2. Petitioner was granted with a lease by the State Government dated 08.05.1991, by which petitioner was entitled to quarry building stones, granite stones etc. from an area having an extent of 1 Acre 8 Cents in Survey Nos.571/1A/12, 571/1A/34/4/1 and 571/1A/34/4/2 in Konnithazham Village. On the basis of the quarrying lease, petitioner was carrying out quarrying operations. In the meantime, petitioner obtained a quarrying permit on 03.02.1997 bearing No.367/9697/MM/GS/ROA/207/MM/97 to extract and remove 400 tonnes of granite stones from an extent of 50 cents in Survey W.P.(C) Nos.25012/13 & 8872/18 3 No.573/1A/34. According to the petitioner, yet another permit was granted to the petitioner to extract and remove a further 400 tonnes of granite stones. Both the permits were granted after site inspection and after satisfaction of the site. Petitioner was issued with another quarrying lease to extract granite stones from Survey Nos.571/1A/12 and 571/1A/34, which was not covered under the earlier lease. The said lease was also issued after site inspection and verification on 13.08.1999. The lease was granted on 04.09.1999 and was executed on 08.09.1999. 3. While the petitioner was carrying out quarrying operations under the leases, petitioner was served with a notice dated 01.01.2000 by the 3[rd] respondent stating that the petitioner had unauthorizedly quarried 7,48,610 metric tonnes of stones from Survey Nos.571/IA/12 and 571/1A/34. Immediately on receipt of the notice, petitioner objected to the same. Finally, 3[rd] respondent issued Ext.P1 order styled as a notice dated 19.02.2000, demanding an amount of Rs.5,68,38,560/-, alleged to be the royalty, cost and penalty for illegal quarrying. 4. Ext.P1 was challenged by the petitioner under Rule 49 of the Kerala Minor Mineral Concession Rules, W.P.(C) Nos.25012/13 & 8872/18 4 1967 (for short, 'the Rules, 1967') before the 1[st] respondent. The main ground of challenge in the appeal was that, (i) the order of the Geologist was illegal, without authority and in violation of natural justice, (ii) Geologist does not have any authority to issue Ext.P1, since such power is vested only with State Government under Rule 58(2) of the Kerala Minor Mineral Concession Rules, 1967, (iii) no site inspection of any nature was conducted, (iv) the extent of alleged quarrying is without any basis or evidence, and (v) it is impossible to remove such extent within the time. The appeal filed by the petitioner was allowed by the State Government as per Ext.P2 order dated 25.08.2000, and Ext.P1 order was set aside and directed the Director of Mining and Geology to take action as per Rule 58 of the Rules. 5. Pursuant to Ext.P2, petitioner was served with Ext.P3 notice dated 16.11.2001 issued by the 2[nd] respondent, i.e., the Director of Mining and Geology, directing the petitioner to show cause as to why legal proceedings should not be initiated for illegally quarrying 7,48,610 metric tonnes of building stones. On receipt of Ext.P3, petitioner has submitted Ext.P4 objection dated 10.12.2001, contending that there was W.P.(C) Nos.25012/13 & 8872/18 5 no site inspection as is stated during November, 1999 or on 19.08.1999. It was further pointed out that, there was no authority to the Director to issue notice. Other contentions are also raised in the objection. 6. Thereafter, petitioner was served with a notice dated 04.01.2002 by the 1[st] respondent finding the petitioner guilty for the offence under Sec.4(1) of the Minor Mineral (Development and Regulation) Act, 1957, and imposed a fine of Rs.25,000/-, and an amount of Rs.5,68,33,560/- towards cost and royalty of metal alleged to be illegally quarried, evident from Ext.P5. Ext.P5 was challenged by the petitioner by filing O.P.No.4734 of 2002 before this Court. While the original petition was pending, the Government have corrected Ext.P2 to the extent it directed the Director of Mining and Geology to take action under Rule 58(2) by issuing G.O.(Rt) No.645/2002/ID. By the said order, the Government modified the last sentence in Ext.P2, evident from Ext.P6 dated 29.07.2002. According to the petitioner, by virtue of Ext.P6, the entire proceedings in Exts.P3 and P5 transformed themselves as orders without authority or jurisdiction. Anyhow, O.P.No.4734 of 2002 filed by the petitioner was allowed as per Ext.P7, quashing Ext.P5, recording the modification of W.P.(C) Nos.25012/13 & 8872/18 6 the order made by the State Government as per Ext.P6. It is also the case of the petitioner that, after Ext.P7 judgment was delivered, Government sought permission to review Ext.P6 and the said permission was not granted. Thus the entire issue attained a quietus and has become final as on 2002. 7. While so, petitioner was served with a notice dated 24.03.2012 by the 2[nd] respondent, directing the petitioner to pay an amount of Rs.5,68,58,560/immediately. The said Government Order refers to a Government Order dated 15.02.2012, and accordingly, petitioner obtained a copy of the order dated 15.02.2012. Even though it is mentioned in the said order that a copy is given to the petitioner, it was never been served. As per Ext.P8 Government Order, it says the “Government Order of 2002 is hereby cancelled”, i.e., Ext.P6. The case projected by the petitioner is that, Ext.P8 is absolutely illegal and without authority or jurisdiction for the reason that the power available to the Government to cancel an order passed in exercise of statutory powers, that too, after a period of ten years and merely by a change of opinion. It is also submitted that, Ext.P8 is issued in violation of Ext.P7 judgment of this Court. True W.P.(C) Nos.25012/13 & 8872/18 7 copy of the order dated 24.03.2012, imposing royalty and other charges is produced as Ext.P9. That apart, it is submitted that, the effect of Exts.P8 and P9 is that, the order passed in a statutory appeal (Ext.P2), which was corrected in accordance with law, and affirmed by this Court in Ext.P7 has been completely varied, modified, altered and reviewed by Ext.P8 without any power, authority or jurisdiction. 8. Challenging Ext.P9, petitioner preferred Ext.P10 appeal dated 29.03.2012 and the same was rejected as per Ext.P11 order, which, according to the petitioner, was done without taking into account the contentions put forth by the petitioner, that a hearing was conducted during May, 2012, solely for the purpose of considering stay application and no further hearing took place. It is thus seeking to quash Exts.P8, P9 and P11, W.P.(C) No.25012 of 2013 is filed. 9. A detailed counter affidavit is filed by the 1[st] respondent, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, notice dated 24.03.2012 was issued by the Director of Mining and Geology, Thiruvananthapuram, demanding the petitioner company to pay the amount of Rs.5,68,58,560/- for unauthorized W.P.(C) Nos.25012/13 & 8872/18 8 extraction of 7,47,810 metric tonnes granite building stones, i.e., after deducting the quantity of 800 metric tonnes, the petitioner claimed to have been removed as per the permit granted to them from the land comprised in Survey No.571/IA/12 and 571/1A/34 of Konnithazham Village of Pathanamthitta District. It is also stated that, Ext.P11 order is passed by the 1[st] respondent on the review application against Ext.P9 demand notice dated 24.03.2012, after providing sufficient opportunity to the petitioner in the appeal as well as on the review application, which were considered in detail by the Government. 10. It is further stated that, in fact, the lease had been allowed to the petitioner for extracting granite building stones over an area of 1.08 Acres comprised in Survey Nos.571/1A/34/4/1 and 571/1A/34/4/2 and 571/1A/34/2 of Konnithazham Village. According to the 1[st] respondent, Survey No.571/1A/12 has been quoted in the writ petition with a _malafide_ intention as part of the petitioner's objective to include the area encroached and quarried illicitly. The Survey No.1A/12 does not figure in the lease agreements and consequently, petitioner had no right to quarry that land. The statement of the petitioner company is an W.P.(C) Nos.25012/13 & 8872/18 9 admission of guilt of unauthorized quarrying at least in the said sub-division 1A/12. The subsequent mapping of the encroachment, by the Tahsildar, shows that the unauthorized quarrying extends to sub-division 1A/12 and 1A/34 part (Block I, II, and III of Annexure-R2(a) Map). 11. It is also stated that, petitioner company was granted a subsequent quarrying lease having an extent of 1 Acre 3 cents comprised in Survey Nos.571/1A/12 and 571/1A/34 for a period of five years commencing from 08.09.1999. But the site inspection date to consider the grant was on 18.08.1999, as per letter dated 20.08.1999. The land inspection dated 13.08.1999 was not in that connection, but it was a joint inspection of the officers of the Directorate of Mining and Geology and the Geologist, Pathanamthitta for a public enquiry on the basis of a complaint raised by local public. During the said enquiry, the authorities have noticed stealthy encroachment and unauthorized quarrying, and the inspection team prepared Ext.R1(a) report also. When the encroachment and illicit mining was asked to be explained during the joint inspection, petitioner demanded survey by revenue officials, which has confirmed the finding. In the meanwhile, petitioner W.P.(C) Nos.25012/13 & 8872/18 10 company obtained the 1999 quarrying lease for the area adjacently east of the said encroachment. In that manner, petitioner has managed to obtain the quarrying leases on both sides of the encroached area with clear intention of camouflaging the unauthorized quarrying carried out in the land sandwiched between two legitimate lease holds. From Ext.P1, it could be seen that, two opportunities were given to the petitioner to defend his case _vide_ reference 2 and 4 in Ext.P1 notice dated 19.02.2000 by the Geologist. Since the Government have held that District Geologist did not possess power to issue Ext.P1 notice, the notice was set aside by Ext.P2 order. But, nowhere in Ext.P2 order, it is stated that Ext.P1 notice has been rejected or the mining activities of the petitioner was legitimized. 12. The Government have set aside Ext.P1 notice, due to lack of delegation as per the Rules, 1967, enabling the District Geologist to claim such dues. But the Government have ordered the 2[nd] respondent to take action on the findings, and therefore, it is clear that the findings of the Geologist were never set aside in Ext.P2 order. It was thereupon that, Ext.P3 notice was issued to the petitioner dated 16.11.2001 on the same charges. The main contention advanced by the W.P.(C) Nos.25012/13 & 8872/18 11 petitioner was that, at no point of time, there was any allegation of illegal quarrying of the above mentioned land, which, according to the 1[st] respondent, is absolutely false, since the encroachment and illicit mining of the petitioner has been noticed and thereupon that, notice was issued to the petitioner. It is further submitted that, the delayed detection of an offence does not justify the contravention. It was after considering the arguments of the petitioner, Ext.P5 notice was served on him and certain claims raised by the petitioner was allowed and the notice has been revised accordingly. Since it was found that the District Geologist was not vested with power, the Government authorized the Director of Mining and Geology to initiate proceedings against unauthorized extraction of granite by the writ petitioner, and the 2[nd] respondent is empowered to initiate proceedings against illegal extraction of quarrying as per Sec.21(5) of the Regulation Act, 1957, as per G.O.(Ms) No.264/83/ID dated 24.10.1983. Besides, as per notification No.32010/L2/93/ID dated 22.06.1995, the Government of Kerala have appointed the 2[nd] respondent to exercise the powers and perform the functions as such under the Rules, 1967. Therefore, the 2[nd] 12 W.P.(C) Nos.25012/13 & 8872/18 respondent is empowered to take proceedings against illegal extraction. 13. It was on realizing that, the issue required serious consideration, as per Ext.P2 order, the State Government authorized the 2[nd] respondent to take legal action against the petitioner, but thereafter it was modified as per Ext.P6. It is true, Ext.P5 order was under challenge before this Court in O.P.No.4734/2002, which was disposed of as per Ext.P7 judgment. However, the contention raised by the petitioner that the request of the Government to review the Government Order in Ext.P6 was not granted by this Court, is not true or correct. By the judgment, this Court did not prevent the State Government to review the orders in Ext.P6. It is further stated that, as per Rule 51 of the Rules, 1967, statutory review is provided, whereby the final appellate authority may, on its own motion or on an application by the interested party, review any order passed by it, and pass such orders in reference thereto as it may deem fit. Therefore, since this Court did not observe any comment over reviewing Ext.P6 order, the Government took steps to review the Government Order passed, based on the statutory provision. It is true, the Government as per order W.P.(C) Nos.25012/13 & 8872/18 13 dated 15.02.2012 cancelled Ext.P6 order and ordered the 2[nd] respondent to take further action. It was thereupon that, notice was issued by the 2[nd] respondent dated 24.03.2012, directing the petitioner to pay the amount towards royalty, price and fine for the unauthorized quarrying of granite building stones by the petitioner from the disputed land in question. 14. It is further stated that, the 2[nd] respondent has issued notice dated 24.03.2012 taking into account the factual and legal position in the present case. The case of the Government is that, petitioner has illegally extracted granite building stones unauthorizedly and in violation of the lease conditions, and there is no _malafide_ exercise of power by the 2[nd] respondent and the 2[nd] respondent has actually issued a notice, evident from Ext.P9 dated 24.03.2012, against which petitioner has preferred a review petition before the Government, viz., Ext.P10. It is submitted that, it was hearing the petitioner and taking into account the entire factual circumstances, Ext.P11 order was passed. It is also the case of the 1[st] respondent that, clear calculations were made with respect to the unauthorized quarrying operations conducted by the petitioner and thereafter only, notice W.P.(C) Nos.25012/13 & 8872/18 14 was issued to the petitioner. Petitioner could have filed objection to Ext.P9 notice, instead, petitioner submitted a review before the Government, evident from Ext.P10. Therefore, the sum and substance of the contention put forth by the 1[st] respondent is that, the action initiated by the 1[st] respondent as per Ext.P8 and the consequential action by the 2[nd] respondent as per Ext.P9 and the action of the appellate authority as per Ext.P11 are in accordance with law. 15. I have heard Sri. Bechu Kurian Thomas, learned Senior Counsel for the petitioner, assisted by Advocate Enoch David Simon Joel and the learned Special Government Pleader, Sri. M.H. Hanil Kumar. Perused the pleadings and the documents on record. 16. The main point raised by learned Senior Counsel for the petitioner is that, Ext.P8 order passed by the State Government, reviewing Ext.P6 is bad, without authority and jurisdiction, since review is the creation of a statute and review can only be once, there cannot be a second review on the same cause of action. Therefore, according to the learned Senior Counsel, Ext.P8 review order passed by the State Government is totally arbitrary and illegal. Rule 51 of the Rules, 1967 empowers the competent authority as W.P.(C) Nos.25012/13 & 8872/18 15 well as the appellate authorities to review its own order. However, Ext.P8 is a review order passed after ten years from passage of Ext.P6 order. It is further submitted that, Ext.P6 review has finally culminated in Ext.P7 judgment rendered by this Court, since at the time of hearing of the original petition, permission was sought for by the State Government to review Ext.P6 order, which was not granted by the Court, and therefore, Ext.P8 order of the State Government, reviewing Ext.P6 is illegal and arbitrary. That apart, it is submitted that, Ext.P9 order is consequential to Ext.P8 and it was passed _ex parte,_ without providing any opportunity, and therefore, Ext.P9 cannot be sustained under law. Even though petitioner has preferred Ext.P10 styled as a review, it was an appeal before the State Government and the State Government did not take into account any of the points put forth by the petitioner and has arrived at the conclusions without understanding the true factual circumstances and without any legal or factual foundation. 17. On the other hand, learned Special Government Pleader submitted that, Ext.P2 order is passed by the 1[st] appellate authority and the 1[st] appellate authority has thereby become _functus officio_ and the 1[st] appellate W.P.(C) Nos.25012/13 & 8872/18 16 authority did not have the power to pass Ext.P6 modified order. Therefore, Ext.P6 order of review by the 1[st] appellate authority is bad and illegal. That apart, it is submitted that, while rendering Ext.P7 judgment, this Court did not consider the legality of Ext.P6 review and merely because a permission was sought to review the order, in which no opinion was expressed by the Court, it cannot be termed as a consideration by the Court in order to have a finality to Ext.P6 modification order. Further, it is pointed out that, in Ext.P8, it is clear that, a copy was marked to the petitioner, and therefore, the contention advanced by the petitioner that no notice was served on the petitioner, cannot be sustained under law. It is also pointed out that, the marking of copy in Ext.P8 is not disputed by the petitioner in any of the proceedings that have undergone. That apart, it is submitted that, Ext.P9 was a notice issued to the petitioner and the petitioner had every opportunity to file objection to the same, but instead of filing objection, petitioner has filed a review, treating it as an order, and therefore, petitioner cannot contend that he was not served with a notice. W.P.(C) Nos.25012/13 & 8872/18 17 18. I have evaluated the rival submissions made across the Bar. The primary question coming up for consideration is, whether Ext.P8 order passed by the State Government dated 15.02.2012, cancelling Ext.P6 Government Order dated 29.07.2002 is valid or not. As is discussed above, the point raised by learned Senior Counsel for the petitioner is relying upon Rule 51 of the Rules, 1967, which read thus: _“_ _**51. Review** :- The competent authority or the appellate authority in case its orders have not been challenged in appeal under clause (a) or clause (b) of sub-rule (1) of rule 49, as the case may be, or the final Appellate Authority may, on its own motion or an application by the interested party, review any order passed by it and pass such orders in reference thereto as it may deem fit.”_ 19. Therefore, on a reading of the afore-quoted provision, it is clear that the competent authority, the appellate authority and the final appellate authority are vested with powers to review its own orders and pass such orders in reference thereto as it may deem fit. It is an admitted fact that, Ext.P2 order was passed by the 1[st] respondent dated 25.08.2000, interfering with Ext.P1, holding that the District Geologist did not have any power to pass such an order. However, as per Ext.P2, the order was set aside and the Director of Mining and Geology was directed to take ## W.P.(C) Nos.25012/13 & 8872/18 18 action under Rule 58(2) of the Rules, 1967, relating to penalties. It was thereupon, after issuing notice, Ext.P5 order was passed by the Director of Mining and Geology. Ext.P5 shows that, a detailed discussion was undertaken in respect of the leases granted to the petitioner and the unauthorized quarrying carried out by the petitioner. 20. Anyhow, that order was challenged before this Court and it was during the pendency of that original petition, Ext.P6 order is admittedly passed by the State Government dated 29.07.2002, whereby Ext.P2 order was modified in the following manner: “In the circumstances stated above the order of the Geologist, Pathanamthitta (Order No.559/D.O.PTA/M/1999 dated 19.02.2000) is set aside”, and it is further stated that, “the G.O. Read above stands modified to the above extent”. The Government Order referred to therein is Ext.P2 order passed by the State Government dated 25.08.2000. As per the modification, the direction issued to the Director of Mining and Geology was taken away, which thus means, Ext.P2 order was made conclusive, without granting any power to any authority to proceed against the alleged unauthorized quarrying activity of the petitioner. W.P.(C) Nos.25012/13 & 8872/18 19 21. On a reading of Rule 51 of the Rules, 1967, it is clear that, the review power can be exercised by the appropriate statutory authorities, only if no appeal is pending against the respective orders. True, the original petition that was pending before this Court which finally culminated in Ext.P7 judgment cannot be termed as an appeal. But, definitely, that is a challenge made against Ext.P5 order passed by the statutory authority, which thus means, the legality and veracity of Ext.P5 order was under serious challenge before this Court in an original petition under Article 226 of the Constitution of India. So much so, once a writ petition is admitted to the files of this Court, the issues raised therein have all the characteristics to be adjudicated in accordance with law. 22. In my considered view, when the original petition was so pending, the State Government who is the 1[st] appellate authority, from the order of the Director of Mining and Geology, was not vested with powers to modify any order. So also, it cannot be said that, Ext.P6 order is a review of Ext.P2 order passed by the State Government in its absolute terms. The Government itself clearly stated in Ext.P6 that it is a modification. Therefore, in my considered opinion, the W.P.(C) Nos.25012/13 & 8872/18 20 action taken by the State Government, modifying Ext.P2 order while the order in question was under challenge before this Court was a strange proceeding, and it cannot be termed as a legalistic approach made by the State Government to the issue in question, which has got immense financial implications. So also, when the Government found that the District Geologist did not have power, it conferred the power to the Director of Mining and Geology for consideration of the subject matter and take action in accordance with Rule 58 of the Rules, 1967, since the State Government had the duty and obligation to decipher the truth with respect to the alleged illegal quarrying carried out by the petitioner. Moreover, State, as the custodian of the public property/public money, had the onerous responsibility and obligation to do so. Accordingly, the procedure adopted in Ext.P2 was the one in accordance with law. Therefore, the modification done strangely and abruptly as per Ext.P6 is detrimental to the interest of the State and the public exchequer, and that too, without assigning reason. 23. True, in Ext.P8 modification order, the reasons for re-opening is not stated. According to learned Senior Counsel appearing for the petitioner, a W.P.(C) Nos.25012/13 & 8872/18 21 second review is not possible unless and until fraud or such other malpractices are unearthed, and further that, in Ext.P8 order, such conduct either on the part of the petitioner, or any other statutory authority is reflected. However, in my considered view, there is nothing wrong in the State Government reviewing Ext.P6 order, which was found to be an irregular and perverse proceeding in view of the peculiar nature of the modification made. 24. So also, I find that, while hearing was conducted in O.P.No.4734 of 2002, learned Government Pleader sought permission to review Ext.P6 order, which was produced as Ext.R3(6) along with the counter affidavit of the State Government. Learned Single Judge has recorded that “I am not expressing any opinion on the same”, which in my considered view, cannot be considered as a rejection of the request made by the Government Pleader before the learned Single Judge. Moreover, it was not a subject matter of consideration in the original petition. What was under challenge was Ext.P5 order passed, and therefore, the contention advanced to the effect that consequent to the expression of opinion made by the learned Single Judge, on the request made by the Government Pleader, W.P.(C) Nos.25012/13 & 8872/18 22 the issue relating to Ext.P6 modified order passed by the Government has become final also cannot be sustained under law, especially due to the reason that there was no adjudication of the issue or rather an issue at all to raise any question of estoppel against the Government. To put it otherwise, the issue was actually left open by the Court, without expressing any opinion. That apart, when the constitutional court was considering the issue, propriety and fairness demand to seek leave of the court to take any such decision, failing which, it amounts to interference with the fair administration of justice by a superior court of law. So much so, a judicial act can be said to have attained finality only if it was performed in a judicial way, i.e., by assigning proper reasons, so as not to be blurred, and depend upon any inferences. 25. To drive home the said point, learned Senior Counsel has invited my attention to the judgment of the apex court in _**'State Bank of India** v_ _**. Ram Chandra Dubey**_ _**and Others**_ ' [(2001) 1 SCC 73]. However, in my view, the proposition of law laid down in that case has no bearing to the issue, since in that case, a labour dispute was referred to the Industrial Tribunal, with respect to reinstatement of workman, which was ordered, ## W.P.(C) Nos.25012/13 & 8872/18 23 however, without back wages. In the writ petition filed by the management, challenging the award, workman raised a claim for payment of back wages, but not considered by the writ court. But, later a claim was raised before the Tribunal and Tribunal allowed the same, which was affirmed by the High Court in writ petition. However, the same was interfered by the apex court and held in paragraph 8 as follows: _“8. The principles enunciated in the decisions referred by either side can be summed up as follows:_ _Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting right or b benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasijudicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could_ W.P.(C) Nos.25012/13 & 8872/18 24 _be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages.”_ 26. So also, the judgment of the Delhi High Court in ' _**Dalip Kumar v. Union of India and others**_ ' [MANU/DE/4496/2013] was brought to my notice in that regard. However, that was in regard to a non-grant of a relief claimed, which is deemed to have been rejected, based on principles of _res judicata_ , which has no manner of bearing to the issue on hand. Therefore, to put it otherwise, there was no serious consideration of the issue in the original petition. That apart, rectification of an order stems from the fundamental principle that justice is above all and it is exercised to remove the error and not for disturbing the finality. 27. Moreover, from Ext.P9, it is clear that, it is a notice issued enumerating the details and the petitioner had every opportunity to file objection to the same and contest the proceedings. Instead, W.P.(C) Nos.25012/13 & 8872/18 25 petitioner has preferred Ext.P10 styled as a review before the State Government, which could only be treated as an appeal only. Anyhow, it is clearly found in Ext.P11 order passed by the State Government that the action was initiated after issuing notice to the petitioner and conducting site inspection etc. etc. In my considered view, in Ext.P9 notice, it is clearly mentioned the nature of unauthorized quarrying carried out by the petitioner based on facts and the inspection conducted in the quarry and it was realising the factual situation, the notice was issued. The subject issues on facts were taken into account as per the contentions in Ext.P10 instituted by the petitioner and it was after assimilating the situations in detail, Ext.P11 order was passed. Therefore, petitioner had every opportunity to contest the proceedings and it cannot be said that the action of the respondents was in any manner arbitrary or illegal, justifying interference of this court under Article 226 of the Constitution of India. 28. So far as W.P.(C) No.8872 of 2018 is concerned, it is filed seeking to quash the consequential action to Ext.P9 order, affirmed in Ext.P11 appeal, and therefore, it cannot be said that W.P.(C) Nos.25012/13 & 8872/18 26 the recovery action is in any manner illegal or arbitrary, justifying interference of this court, exercising the discretionary power conferred under Article 226 of the Constitution of India. However, taking into account the factual circumstances and the delay of the State Government in taking action, I think it is only appropriate that the liberty of the petitioner to file suitable objection to the revenue recovery action in regard to the quantification made is left open. Therefore, if the petitioner makes any objection to recovery proceedings pertaining to Ext.R4(c) and R4(d) within three weeks from the date of receipt of a copy of this judgment, it shall be considered by the statutory authority, in accordance with law, at the earliest possible, and at any rate, within three months thereafter. Resultantly, W.P.(C) No.25012 of 2013 will stand dismissed and W.P.(C) No.8872 of 2018 is disposed of with the above said directions. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** W.P.(C) Nos.25012/13 & 8872/18 27 ## **APPENDIX OF WP(C) 25012/2013** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 19.02.2000 NUMBERED AS 589/DOPTA/M/99.** - **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 25.08.2000 NUMBERED AS G.O.(RT)957/2000/ID.** - **EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 16.11.2001 NUMBERED AS 4575/M3/2000 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED 10.12.2001 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE ORDER STYLED AS NOTICE DATED 04.01.2002 NUMBERED AS 4575/M2/2001 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 29.07.2002 IN G.O(RT)NO.645/2002/ID ISSUED BY THE GOVERNMENT.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 17.09.2008 IN O.P.4734/2002 ON THE FILES OF THIS HON'BLE COURT.** - **EXHIBIT P8 TRUE COPY OF THE GOVERNMENT ORDER DATED 15.02.2012 NO.G.O(RT)NO.263/2012/ID.** - **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 24.03.2012 NO.1041/M2/2007 STYLED AS A NOTICE AND ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 29.03.2012 FILED BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 05.09.2013 IN G.O(RT)NO.1134/13/ID ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE QUARRYING PERMIT DATED 24.03.1997 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P13 TRUE COPY OF THE QUARRYING PERMIT DATED 03.02.1997 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** W.P.(C) Nos.25012/13 & 8872/18 28 **RESPONDENT'S/S EXHIBITS: ANNEXURE R1(A) THE PHOTOCOPY OF THE SHOW CAUSE NOTICE DATED 01/01/2000 WITH MEASUREMENT ISSUED BY THE GEOLOGIST. ANNEXURE R1(B) THE PHOTOCOPY OF THE EXPLANATION GIVEN BY THE PETITIONER COMPANY DATED 10/01/2000. ANNEXURE R1(C) THE PHOTOCOPY OF THE DEMAND NOTICE DATED 19/01/2000. EXHIBIT R1(A) A TRUE COPY OF THE REPORT OF THE INSPECTION PREPARED BY GEOLOGIST ON 20/08/1999. EXHIBIT R1(B) A TRUE COPY OF THE MAP PREPARED BY THE TALUK SURVEYOR.** //TRUE COPY// P.S. TO JUDGE St/-