Prince Paul John vs State Of Kerala
2021 Latest Caselaw 4809 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

    WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                        WP(C).No.2266 OF 2021(G)


PETITIONER/S:

                PRINCE PAUL JOHN
                AGED 49 YEARS
                5/445, VANDAPRAPUTHANPURAYIL HOUSE, KOOTHATTUKULAM
                P.O., ERNAKULAM DISTRICT.

                BY ADVS.
                SRI.SANTHOSH MATHEW
                SRI.ARUN THOMAS
                SRI.JENNIS STEPHEN
                SRI.VIJAY V. PAUL
                SMT.KARTHIKA MARIA
                SRI.ANIL SEBASTIAN PULICKEL
                SMT.DIVYA SARA GEORGE
                SMT.VEENA RAVEENDRAN

RESPONDENT/S:

      1         STATE OF KERALA
                REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF
                INDUSTRIES, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM 695 001.

      2         THE DIRECTOR OF MINING AND GEOLOGY
                DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM,
                PATTAM PALACE P.O., THIRUVANANTHAPURAM 695 004

      3         THE DISTRICT SR. GEOLOGIST
                DEPARTMENT OF MINING AND GEOLOGY, GOVT. OF KERALA,
                DISTRICT OFFICE, ERNAKULAM 682 030

                R1-3 BY GOVERNMENT PLEADER

OTHER PRESENT:

                SPL GP KANNAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.2266 OF 2021(G)

                                      2



                                  JUDGMENT

The petitioner, who is engaged with the business of quarrying

and has been conducting quarrying operations in Survey Nos.68/2 and

80/2 in Palakkuzha Village in Muvattupuzha Thaluk, in a extent of

0.7289 hectares of land, has approached this Court apprehending that

the respondents will not permit him to carry on quarrying activities on

the strength of Ext.P6 quarrying permit for the reason that the validity

of the said permit expires on 9.2.2021.

2. In the writ petition, it is the case of the petitioner that owing

to the lock-down imposed in connection with Covid-19 pandemic

situation that prevailed in the country, he was unable to carry out

quarrying activities under the said permit for the period from

24.3.2020 till 28.4.2020 (a period of 36 days). It is also his case that

finding the validity of Ext.P6 quarrying permit to be only till 9.2.2021,

he has preferred an application as evidenced by Ext.P16 challan for

renewal of the permit that was earlier granted to him. It is his case

however, that the renewal application will not be processed

immediately, on account of the pendency of litigation before the NGT,

where the said forum has yet to fix the distance criteria for the grant

of quarrying permits. The limited prayer at this stage is for a direction

to the respondents to permit the petitioner to continue quarrying

activities under Ext.P6 quarrying permit till 17.3.2021, by excluding WP(C).No.2266 OF 2021(G)

the period from 24.03.2020 till 28.4.2020, as the period during which

the quarrying permit could not be worked by the petitioner. The

petitioner places reliance on Ext.P13 order dated 7.5.2020 of the

LSGD, that granted extension for submitting applications for renewal

of all licenses till 31.10.2020, Ext.P14 circular issued by the LSGD

dated 7.5.2020, extending the validity of building permits that expired

on or after 10.3.2020 till 31.12.2020 and Ext.P15 notification dated

18.1.2021 issued by the Ministry of Environment, Forest and Climate

Change, which excluded the period from 1.4.2020 to 31.3.2021, from

the calculation of the period of validity of prior Environmental

Clearances granted under the provisions of the said notification. The

aforesaid documents are relied upon to contend that the Central

Government as also the State Government has excluded periods

during which a person could not carry on activities under cover of

regulatory licenses/ consents/ certificates, while computing the

validity period of the said licenses/ consents/ certificates. The prayer

in the writ petition is essentially for the extension of a similar fair

treatment in respect of the quarrying permit granted to the petitioner.

3.The learned Government Pleader Sri. S .Kannan, vehemently

opposes the prayer of the petitioner by pointing out that granting the

relief sought for by the petitioner would tantamount to extending the

validity period of the permit granted to him, which is not statutorily

permissible. He relies on the judgments in State of Gujarat and Others

Vs. Nirmalaben S.Mehta and another [(2016)9 SCC 240] , Geomin WP(C).No.2266 OF 2021(G)

Minerals and Marketing Private Limited Vs. State of Orissa and Others

and connected cases [ (2013) 7 SCC 571], State of Tamil Nadu Vs. M/s.

Hind Stone and Others [(1981) 2 SCC 205], Nature Lovers' Forum Vs.

State of Kerala [ 2016 (1) KLT 75] , Dharmendra Kumar Singh Vs. State

of Uttar Pradesh [2020 (5) KLT Online 1118(SC)], Senior Geologist Vs.

Thankachan [ 2021(1) KLT 146], Asstt. Collector of Central Excises and

Another Vs. Kashyap Engg. & Metallurgicals (P) Ltd. [ (2002) 10 SCC

443], Union of India and Another Vs. Kirloskar Pneumatic Co. Ltd.

[(1996) 4 SCC 453], Union of India and Others Vs. Concord Fortune

Minerals India Private Limited [(2018) 12 SCC 279], State of Kerala

Vs. Central Pollution Control Board [2021 (1) KLT 1] to canvass the

proposition that this Court should not ignore the statutory scheme

that regulates the activity of mining under the Mines and Mineral

(Development and Regulation) Act r/w The Kerala Mines and Mineral

Concession Rules ('the Act' for short) and accordingly should not

modify the term of a quarrying permit that has been granted by the

State Government to an applicant. It is the further contention of the

learned Government Pleader that if the relief sought for by the

petitioner is granted in the instant case, it will lead to the opening of

floodgates, in that all similarly placed permit holders would now

approach the Government seeking an exclusion of the period during

which the licenses/permits could not be operate, while counting the

period of validity of the said licenses/permits.

4.I have carefully considered the submissions on either side. On WP(C).No.2266 OF 2021(G)

a consideration of the rival contentions, I am of the view that the

exercise of judicial review by this Court, in proceedings under Article

226 of the Constitution of India, must necessarily strive to uphold the

rule of law, while overseeing the conduct of statutory authorities vis-a-

vis citizens. It is now well settled that the basis of judicial review in

our country is not to be found in the concept of ultra vires alone but

on the larger premise of upholding the rule of law which inter alia

takes in the requirement of ensuring fair treatment of citizens

statutory authorities entrusted with the task of regulating their

activities. In the instant case, the petitioner has pointed to the period

of 36 days between 24.3.2020 till 28.4.2020, during which, despite

having a quarrying permit for carrying on the quarrying activities, he

could not carry out the said activities on account of the pandemic

situation that prevailed in the State and which forced the State

Government to impose a lock down. The interests of fairness would

therefore demand that the State Government permit the petitioner to

effectively utilize the permit that was granted to him by ensuring that

the petitioner gets the benefit of the full period envisaged under the

permit for carrying out his quarrying operations. In the instant case,

the period from 24.3.2020 till 28.4.2020 (a period of 36 days) would

have to be excluded while comparing the one year validity period of

Ext.P6 permit, and when so compared the validity of Ext.P6 would

expire only on the midnight of 17.3.2021. In my view, this is a

concession that must be extended by the State Government to the

petitioner, in the interests of fairness in administration. I therefore, WP(C).No.2266 OF 2021(G)

dispose the writ petition with the following directions:-

i)The 3rd respondent shall treat Ext.P6 quarrying permit

issued to the petitioner as expiring only on the midnight

of 17.3.2021 and shall permit the petitioner to carry on

quarrying operations under the said permit till the said

date.

ii) It is made clear that during the aforesaid period, the

petitioner shall confine the quarrying operations only to

the quantity of material that he is permitted to quarry in

Ext.P6 permit. The learned Government Pleader points

out at this juncture that the balance quantity to be

extracted under Ext.P6 is only 5485 MT.

iii)The 3rd respondent shall also in the meanwhile, process

the application dated 25.1.2021 submitted by the

petitioner for renewal of the quarrying permit, after

permitting the petitioner to cure the defects, if any,

pointed out in the same, and by taking note of the

direction issued by this Court in State of Kerala Vs.

Central Pollution Control Board [2021(1) KLT 1]. The

entitlement of the petitioner to future quarrying activities

will depend upon the decision to the taken by the 3 rd

respondent on the application for renewal of the

quarrying permit.

WP(C).No.2266 OF 2021(G)

iv)It is further clarified that nothing in this judgment shall

be seen as permitting the petitioner to carry on quarrying

activities without complying with the necessary

formalities under other regulatory statutes such as the

Kerala Panchayath Raj Act, the Environment Protection

Act etc.

The writ petition is disposed as above.

Sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE SJ WP(C).No.2266 OF 2021(G)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE GRANTED BY THE DISTRICT ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY ON 10.12.2018 IN FAVOUR OF THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE DATED 28.12.2018 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE EXPLOSIVE LICENCE DATED 23.1.2019 ISSUED IN FAVOUR OF THE PETITIONER.

EXHIBIT P4 TRUE COPY OF THE MINING PLAN WHICH IS APPROVED ON 10.11.2017 BY THE GEOLOGIST WITHOUT ANNEXURE.

EXHIBIT P5 TRUE COPY OF THE D AND O LICENCE DATED 24.2.2020 ISSUED IN FAVOUR OF THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE QUARRYING PERMIT DATED 10.2.2020 ISSUED IN FAVOUR OF THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 25.1.2021 SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT GEOLOGIST.

EXHIBIT P8 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 20.4.2020 ISSUED BY THE INSOLVENCY AND BANKRUPTCY BOARD OF INDIA.

EXHIBIT P9 TRUE COPY OF THE PRESS RELEASE DATED 9 MAY 2020 ISSUED BY THE INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY OF INDIA.

EXHIBIT P10 TRUE COPY OF THE OFFICE MEMORANDUM DATED 13 MAY 2020 ISSUED BY THE MINISTRY OF DEFENCE.

EXHIBIT P11 TRUE COPY OF THE ORDER DATED 21 MAY 2020 WP(C).No.2266 OF 2021(G)

ISSUED BY MINISTRY OF INFORMATION AND BROADCASTING.

EXHIBIT P12 TRUE COPY OF THE PRESS RELEASE DATED 26 MAY 2020 ISSUED BY THE MINISTRY OF TOURISM.

EXHIBIT P12 (A) TRUE COPY OF THE G.O.MS.NO.302/2020/IND DATED 30.4.2020

EXHIBIT P13 TRUE COPY OF THE G.O.(ORDINARY) NO.836/2020/LSGD DATED 7.5.2020 ISSUED BY THE LOCAL SELF GOVERNMENT SECRETARIAT.

EXHIBIT P14 TRUE COPY OF THE CIRCULAR DATED 7.5.2020 ISSUED BY LOCAL SELF GOVERNMENT DEPARTMENT.

EXHIBIT P15 TRUE COPY OF THE NOTIFICATION DATED 18.1.2021 ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST AND CLIMATIC CHANGE.

EXHIBIT P16 TRUE COPY OF THE CHALAN DATED 25.1.2021 EVIDENCING PAYMENT MADE BY THE PETITIONER FOR RENEWAL OF THE PERMIT.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R3(a): A TRUE COPY OF THE COMMUNICATION DATED 01/02/2021 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

EXHIBIT R3(b): A TRUE COPY OF PROCEEDINGS DATED 04/09/2020 ISSUED BY THE 2ND RESPONDENT, WHEREBY AN APPLICATION BY A MINERAL CONCESSION HOLDER SEEKING FOR EXTENSION OF LEASE HAS BEEN TURNED DOWN.

EXHIBIT R3(c): A TRUE COPY OF THE LOCATION SKETCH PERTAINING TO THE PETITIONER DATED 12/10/2017.

EXHIBIT R3(d): A TRUE COPY OF THE SUMMARY OF STOCK PERTAINING TO THE PETITIONER FOR THE PERIOD FROM 10/02/2020 TO 08/02/2021 DOWNLOADED FROM THE OFFICIAL SOFTWARE, KOMPAS OF THE MINING AND GEOLOGY DEPARTMENT.