Writ Petition (Civil) No. 33963 of 2019 (U)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **THURSDAY, THE 09TH DAY OF JANUARY 2020 / 19TH POUSHA, 1941** ## **WP(C).No.33963 OF 2019(U)** ## **PETITIONER:** **VIJU M. ITTOOP AGED 48 YEARS MYKULANGARA HOUSE,KINGINIMATTOM.P.O, KOLENCHERRY,ERNAKULAM DISTRICT.** **BY ADVS. SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SMT.VEENA RAVEENDRAN SRI.ANIL SEBASTIAN PULICKEL SMT.DIVYA SARA GEORGE SMT.JAISY ELZA JOE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF MINING AND GEOLOGY, DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM,PATTAM PALACE.P.O, THIRUVANANTHAPURAM-695004.** - **3 THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE,ERNAKULAM-682030.** - **4 POOTHRIKKA GRAMA PANCHAYAT, POOTHRIKKA.P.O, P.IN 682308,ERNAKULA DISTRICT,REPRESENTED BY ITS SECRETARY.** - **5 T.P.CHACKO, AGED 70 YEARS S/O.LATE POULOSE,THOTTAPPALLIL HOUSE,VADAYAMPADY.P.O, PUTHENCRUZ(VIA.),ERNAKULAM.** **WP(C).No.33963 OF 2019(U) 2** **6 T.V.JOY, AGED 70 YEARS S/O.LATE POULOSE,THOTTAPPILLIL HOUSE,VADAYAMPADY.P.O,PUTHENCRUZ((VIA.),ERNAKULAM. 7 VINOD.T.R, AGED 42 YEARS S/O LATE T.A.RAMACHANDRAN,KARTHIK NIVAS,THOTTAPPILLIL HOUSE,VADAYAMPADY.P.O,PUTHENCRUZ((VIA.),ERNAKULAM.** **8 N.N.RAJAN,BLOCK PANCHAYAT MEMBER, POOTHRIKKA GRAMA PANCHAYAT, POOTHRIKKA.P.O, ERNAKULAM-682308.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL BY ADV. SRI.NANDAGOPAL S.KURUP** **BY ADV.SRI.PAUL ABRAHAM VAKKANAL, GP BY ADV.SRI.S.KANNAN, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.33963 OF 2019(U) 3** ## **JUDGMENT** ## **Dated this the 9th day of January 2020** The challenge in this writ petition is against Ext.P21 interim order dated 2.12.2019 in I.A.No.1469/19 in pending Appeal No.680 of 2019 preferred against Ext.P15 order dated 25.9.2019 issued by the fourth respondent - Secretary of Poothrikka Grama Panchayat. As per the provisions of Section 276 of the Panchayat Raj Act, the quarry holder is entitled to approach the Tribunal constituted for adjudication of the controversy. 2. Mr.Santhosh Mathew, learned counsel appearing on behalf of petitioner submits that the prime question to be adjudicated by the Tribunal in view of the decisions rendered by this Court in **All Kerala River Protection Council, Aluva v.** **WP(C).No.33963 OF 2019(U) 4** **State of Kerala and Others [2015 (2) KHC 359]** is as to whether a holder of a quarry licence would be required to obtain environmental clearance, in case of existing lease as on 18.5.2012 or not, where the lease executed between the petitioner and the Government as Ext.P2 is valid for twelve years, i.e, 21st November 2020 and other permissions like consent from the Pollution Control Board as Ext.P4 dated 14.11.2018 valid up to 20th November 2020, Explosive licence as Ext.P5 dated 22.4.2019 valid up to 31st day of March 2022, Movement Permit as Ext.P6 dated 2.5.2019 and mining plan as Ext.P3. 3. It is submitted that all the permissions as required are complied with, however the Assistant Geologist issued Ext.P5 stop memo dated 25.5.2019 which was challenged in this Court in WP(C)No.15110 of 2019 resulting in to an order dated 9th July 2019 in Ext.P9. The matter was referred to Director of Mining and Geology for obtaining the order with **WP(C).No.33963 OF 2019(U) 5** regard to the report of the Geologist. The Director, vide his report Ext.P10 dated 24.7.2019 clarified that the report of the Assistant Geologist was not correct however permitted to continue subject to deposit of Rs.33,908/- and that communication is dated 1.8.2019 Ext.P11. 4. Having been prevented from operating the quarry, the petitioner was constrained to approach the Trial Court in O.S.No.53 of 2019 seeking an interim relief, which was granted vide order dated 25.9.2019 as Ext.P13. During all these periods, the Grama Panchayath on intervention of the affected parties issued a stop memo dated 25.9.2019 as Ext.P15, necessitating the petitioner to approach the Local Self Government Department. 5. It was next contended that no useful purpose would have served in keeping the appeal pending, when the Tribunal in the first instance had granted the interim order and passed order dated 4.11.2019 extending this stay. He would not be **WP(C).No.33963 OF 2019(U) 6** averse, in case any time line directions are issued to Tribunal to dispose of the Appeal along with interim application in order to avoid any multifariousness. 6. The learned counsel for the Panchayat do not dispute the issuance of Ext.P15 and pendancy of the Appeal. However, the learned counsel for respondents 5 to 7 who are also parties in the pending appeal submits that they have also availed the remedy of writ petition in this Court challenging the mining plan and seeking the implied revocation of the lease on various grounds and the order of the Director of Mining and Geology which is stated to be pending without any interim stay. It is a matter of record that the Original Civil Suit is still pending in which the private respondents have been arrayed as defendants. 7. Having heard the learned counsel for the parties, I am of the view that the Tribunal had unnecessarily undertaken the task of writing nine pages while disposing of the interim **WP(C).No.33963 OF 2019(U) 7** application, the fact that at the initial instance interim injunction was granted. Rather it should have laid focus in adjudication of the Appeal, as the interim stay can be passed only after the completion of the pleadings. It is yet to be decided whether the impugned order before the Tribunal is valid in law or not. It should be of course, be in the domains of the Tribunal. 8. Without commenting on the merits and demerits of the report of the Director or without prejudice to the right of the private respondents having availed the remedy and being a defendant in the Original suit, much less the maintainability of the writ petition, I dispose of the writ petition by setting aside the impugned order by issuing a direction to the Tribunal to take decision on the appeal bearing No.680 of 2019 as expeditiously as possible, within a period of two months from the date of receipt of the certified copy of the order and the interim directions already granted on 4.11.2019 during the **WP(C).No.33963 OF 2019(U) 8** period shall continue to operate. It is made clear that Tribunal shall be at liberty to pass any adverse order, in case it finds that the appellant in the Appeal adopts any dilatory tactics. 8. At this stage, this Court has been apprised regarding the incapacity of the Tribunal being headed by the District Judge, Thiruvananthapuram. This Court had already directed the Registrar General to seek report and ensure issuance of the notification for making alternative arrangements. **Sd/-** **AMIT RAWAL JUDGE** ACM/9/1/2019 **WP(C).No.33963 OF 2019(U) 9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ORDER NO.491/200809/9466/M3/2008 DATED 11.11.2008.** - **EXHIBIT P2 TRUE COPY OF THE QUARRYING LEASE DEED EXECUTED ON 21.11.2008 BETWEEN THE STATE GOVERNMENT AND THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE RELEVANT PORTION OF THE APPROVED MINING PLAN ISSUED IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P3 A TRUE COPY OF THE BANK GUARANTEE SUBMITTED BY THE PETITIONER IN FAVOUR OF THE DIRECTOR OF MINING AND GEOLOGY** - **EXHIBIT P4 TRUE COPY OF THE CONSENT OPERATE BY THE KERALA STATE POLLUTION CONTROL BOARD ON 14.11.2018 IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE EXPLOSIVE LICENSE DATED 22.4.2019 FOR POSSESSION OF EXPLOSIVES ISSUED IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE MOVEMENT PERMIT ISSUED TO THE PETITIONER TO REMOVAL OF MINOR MINERALS.** - **EXHIBIT P7 TRUE COPY OF THE ePAYMENT TRANSACTION SLIP DATED 27.4.2019 EVIDENCING PAYMENT OF THE ROYALTY BY THE PETITIONER.** - **EXHIBIT P8 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT IN W.P(c)NO.15110/2019.** - **EXHIBIT P9 TRUE COPY OF THE INTERIM ORDER DATED 9.7.2019 IN W.P(c)NO.15110/2019** - **EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS DATED 24.7.2019 PASSED BY THE DIRECTOR OF MINING AND GEOLOGY.** **WP(C).No.33963 OF 2019(U) 10** **EXHIBIT P11** - **TRUE COPY OF THE ORDER DATED 1.8.2019 ISSUED BY THE GEOLOGIST,MINING AND GEOLOGY.** - **EXHIBIT P12** - **TRUE COPY OF THE ORDER DATED 25TH SEPTEMBER,2019 IN I.A.NO.339/2019 IN O.S.NO.53 OF 2019** - **EXHIBIT P13** - **TRUE COPY OF THE I.A.NO.363 IN O.S.NO.53 OF 2019.** - **EXHIBIT P14** - **TRUE COPY OF THE D & O LICENCE ISSUED BY THE POOTHRIKKA GRAMA PANCHAYAT IN FAVOUR OF THE PETITIONER** - **EXHIBIT P15** - **TRUE COPY OF THE STOP MEMO DATED 25/9/2019 WAS ISSUED BY THE SECRETARY OF POOTHRIKKA GRAMA PANCHAYAT** - **EXHIBIT P16** - **TRUE COPY OF THE APEAL NO.680/2019 FILED BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,THIRUVANANTHAPURAM,BY THE PETITIONER.** - **EXHIBIT P17** - **TRUE COPY OF THE ORDER DATED 15.10.2019 PASSED IN I.A.NO.1469/2019 IN APPEAL NO.680/2019 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,THIRUVANANTHAPURAM.** - **EXHIBIT P17 A TRUE COPY OF THE EXTENDED INTERIM ORDER DATED 4.11.2019 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,THIRUVANANTHAPURAM.** - **EXHIBIT P17 B TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH RESPONDENT IN APPEAL NO.680/2019 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,THIRUVANANTHAPURAM.** **EXHIBIT P18** - **TRUE COPY OF THE PETITION FOR EXTENSION OF STAY FILED IN APPEAL N0.680 OF 2019** **WP(C).No.33963 OF 2019(U) 11** ## **EXHIBIT P19** **EXHIBIT P20** ## **EXHIBIT P21** **EXHIBIT P22** **EXHIBIT P23** **TRUE COPY OF THE AFFIDAVIT DATED 26TH NOVEMBER,2019 PRODUCING A COPY OF THE INTERIM ORDER DATED 9.7.2019 IN W.P(C)N.15110/2019.** **TRUE COPY OF THE IMPLEADING PETITION IN APPEAL NO.68O OF 2019 FILED BY RESPONDENT 5 TO 7 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.** **TRUE COPY OF THE ORDER DATED 2.12.2019 IN I.A.NO.1469 OF 2019 IN APPEAL NO.680 OF 2019.** **TRUE COPY OF THE COMMUNICATION DATED 5.11.2019 ISSUED BY THE GEOLOGIST TO THE 4TH RESPONDENT PANCHAYAT.** **PHOTOGRAPHS OF THE QUARRY OPERATED BY NAVEEN CHERIAN POOVELIL.**