Manoj Krishnan vs State Of Kerala
2021 Latest Caselaw 1220 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                  &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

   WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                      WP(C).No.29153 OF 2020(S)


PETITIONER:

               MANOJ KRISHNAN
               AGED 45 YEARS
               S/O. RAMAKRISHNA PILLAI, RESIDING AT PARADISE,
               KUNNIKODU, ILAMBAL VILLAGE, PATHANAPURAM TALUK,
               KOLLAM DISTRICT, PIN CODE-691 508.

               BY ADVS.SRI.P.VISWANATHAN (SR.)
               SRI.AJITH VISWANATHAN
               SRI.SHIBU JOSEPH
               SRI.ABHILASH BHASKAR
               SRI.PRASAD CHANDRAN
               SHRI. SAYED MANSOOR BAFAKHY THANGAL

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS CHIEF SECRETARY,
               SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

      2        THE PRINCIPAL SECRETARY
               DEPARTMENT OF REVENUE, GOVERNEMNT OF KERALA,
               SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.


               BY SRI. V.TEKCHAND, SR GP FOR RESPONDENTS

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.29153 of 2020
                                             2


                                      JUDGMENT

Dated this the 13th day of January, 2021

S.Manikumar, C.J.

Translated version of the impugned Exhibit P1 proceedings in G.O.

(Ms)No.593/15/REV. dated 11.11.2015 and Exhibit P2 proceedings in

G.O.(Ms)No.95/2019/RD dated -/03/2019, are reproduced:

"GOVERNMENT OF KERALA Abstract Revenue Department- Order issued authorizing the department of Revenue to give sanction to all quarry, crusher and all other related units for continuing its operations and the units, which stalled its operations even after obtaining all legal sanctions to grant further permissions, and to begin the aforesaid industries in LA assigned lands.

-----------------------------------------------------------------------------------

Revenue (P) Department G.O.(Ms.)No.593/15/Revenue Thiruvananthapuram, Date-11-11-2015

----------------------------------------------------------------------------------- Reference:- Letter No. L.R.(K)4-16244/09 of Land Revenue Commissioner dated 17-09-2015 to authorize the department of Revenue.

ORDER In the meeting presided by the Hon'ble Chief Minister for redressal of the grievances in the quarrying sector convened on 08-

09-2015, it has been decided to authorise the Revenue Department to grant sanction, in the L.A assigned lands which obtained 'pattayam' based on several land assignment rules, Kerala Private Forest (Vesting and Assignment) Act, 1971 and all other land assignment Acts and Rules published from time to time in the light of Kerala Government Land Assignment Act, 1960, to the units which obtained all necessary legal sanctions and NOC from the revenue department to conduct quarry, rock mining, crusher and all W.P.(C)No.29153 of 2020

other related units and those units which obtained necessary legal sanction but stalled its operations to continue the aforesaid industries and to give sanction to commence the aforesaid industries in the in L.A assigned lands.

Government has examined the matter in detail. It has been ordered to authorize the revenue department to grant sanction to the units which obtained all necessary legal sanctions and NOC from the revenue department to conduct quarry, rock mining, crusher and all other related units and those units which obtained necessary legal sanction but stalled its operations to continue the aforesaid industries and to give sanction to commence the aforesaid industries in the L.A. assigned lands which were assigned as per various Land Assignment Rules issued under Kerala Land Assignment Act, 1960, Kerala Private Forest (Vesting and Assignment) Act, 1971 and all other land assignment Acts and Rules that were issued from time to time, subject to the prevailing conditions and judgments of the court. The respective District Collectors shall take decisions upon it after specifically inspecting such applications submitted before it.

By order of the Governor Dr. Viswas Mehta Principal Secretary to the Government"

***********

"KERALA GOVERNMENT Synopsis Revenue Department -- permission for quarrying at government assigned land -- Kerala Land Assignment Rules, 1964 -- issuing order to make amendment.

------------------------------------------------------------------------------------

Revenue (P) Department G.O.(Ms.) No. 95/2019/RD Date, Thiruvananthapuram, 03/2019

------------------------------------------------------------------------------------ Ref: Kerala Land Assignment Rules, 1964 (S.R.0 No.71/64) W.P.(C)No.29153 of 2020

ORDER

1. In the light of the complaints that has been raised in the Legislative Assembly, whereby it has been found that there is severe scarcity of construction materials in the state and owing to the immense rise in its cost the construction activities were being hampered, and also considering the fact that the permissions already granted allowing quarrying operations at the land assigned under the Kerala Land Assignment Rules, 1964 were prohibited and new quarrying permits have not been issued thereafter, the government evaluated that it will be appropriate to bring about an amendment to the Kerala Land Assignment Rules, 1964. The government further examined the need for regulating the ongoing quarrying activities that was being carried out on the basis of previously issued quarrying permit in the land assigned for specific purposes.

2. In the above circumstances, it is ordered to amend the present Rule 4 of the Kerala Land Assignment Rules, 1964 as sub rule (1) and to insert sub rule (2) and sub rule (3) with the following paragraphs.

4(2). Quarrying permits may be granted, by the authorities concerned, under Kerala Minor Mineral Concession Rules, 2015, provided that the District collector issues a No Objection Certificate (NOC) based on the report suggesting that the land is not fit for agriculture and that the land is best suited for quarrying activities, by a committee consisting of a Geologist, Agricultural officer and the Village Officer, after examining such land. 4(3). Whereas in those areas where quarrying permits have been already granted within such lands assigned under Kerala Land Assignment Rules, 1964, quarrying activities may be regulated by accepting seigniorage at a rate proportional to the fees charged for quarrying at government sites based on the ordinance issued by the Government from time to time.

W.P.(C)No.29153 of 2020

3. An ordinance shall be specially published regarding the amendments to the Rules under Kerala Land Assignment Rules 1964.

As per the order of the Governor Sd/-

Land Revenue Commissioner, Thiruvananthapuram, All District Collectors, Director, Mining and Geology Department, Department of Industries and Commerce Agriculture Department General Administration (SC) Department [As per Cabinet Decision of 05-03-2019 (item No.2930 O.A)] Principal Accountant General (Audit), Thiruvananthapuram, Kerala Accountant General (A&E), Thiruvananthapuram, Kerala I & P.R.D Department (For wide propagation) Stock File/ Office copy"

2. Contending, inter alia, that the impugned proceedings have

been issued in contravention of the procedure contemplated for

amendment of rules, instant Public Interest Litigation is filed for the

following reliefs:

"A) Issue a writ of certiorari or other appropriate writ, direction or order, quashing Exhibit P1 government order published by the respondents.

B) Issue a writ of prohibition or other appropriate writ, direction or order, directing the respondents or any officers under it or designated as per Exhibit P2 to implement Exhibit P2, or to pass any orders, or to receive seigniorage or do anything in furtherance of Exhibit P2, till it receives the force of law."

3. Added further, inviting the attention of this Court to paragraph

No.2 of Exhibit P2, Mr. P. Viswanathan, learned Senior Counsel appearing

for the appellant, submitted that Government have ordered to amend W.P.(C)No.29153 of 2020

Rule 4 of the Kerala Land Assignment Rules, 1964, without following the

procedures set out in the Business Rules, as well as in the Kerala

Secretariat Office Manual.

4. Responding to the above, Mr. V. Tekchand, learned Senior

Government Pleader, submitted that what is stated in paragraph No.2 of

Exhibit P2 is only the decision taken to amend Rule 4 of the Kerala Land

Assignment Rules, 1964, but no steps have been taken so far. He also

invited the attention of this Court that though the Government, in the

year 2019, have intended to issue an ordinance regarding amendment,

the same has not been done. Learned Senior Government Pleader further

submitted that no quarrying permit has been granted by the authorities

as contemplated, as proposed.

5. Submission of the learned Senior Government Pleader is placed

on record.

6. Heard the learned counsel for the parties and perused the

material available on record.

7. Though, at paragraph No.2 of Exhibit P2, the Government have

employed the words "ordered to amend", no such amendment has been

made so far. Besides, no ordinance has been issued. As per the

statement of the learned Senior Government Pleader, no quarrying permit

has been granted in terms of the impugned order, Exhibit-P2. Procedure W.P.(C)No.29153 of 2020

set out, in the supporting affidavit to the prayers sought for can be raised

only if, there is any amendment made. That apart, ordinance can be

issued only when the Assembly is not in session. As on today, things are

different. Instant writ petition is premature.

In the light of the above, the reliefs sought for in the writ petition

cannot be granted. It is accordingly dismissed.

Pending interlocutory applications, if any, shall stand closed.

Sd/-

S.Manikumar Chief Justice

Sd/-

Shaji P.Chaly Judge vpv W.P.(C)No.29153 of 2020

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 THE TRUE PHOTOSTAT COPY OF G.O.

(MS)NO.593/15/REV, DATED 11.11.2015 ISSUED BY THE RESPONDENTS, ALONG WITH ITS ENGLISH TRANSLATION.

EXHIBIT P2 THE TRUE PHOTOSTAT COPY OF G.O.

(MS)NO.95/2019/RD, DATED -03/2019, ISSUED BY THE RESPONDENTS, ALONG WITH ITS ENGLISH TRANSLATION.

/TRUE COPY/

P.A. TO JUDGE