K.M.Jalal vs Village Officer
2021 Latest Caselaw 1317 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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

                        WP(C).No.550 OF 2021(P)


PETITIONER/S:

                K.M.JALAL,S/O. MOIDEEN
                KAVALAKKAL HOUSE CHERUVATOOR P.O.
                KOTHAMANGALAM, ERNAKULAM DISTRICT-686 691

                BY ADVS.
                SRI.JOJI GEORGE JACOB
                SRI.BABY KURIAKOSE
                SRI.RAAJESH S.SUBRAHMANIAN

RESPONDENT/S:

      1         VILLAGE OFFICER,
                KURUPPAMPADY, UPPUKANDAM-MALIPPARA ROAD, KOTTAPPADY,
                ERNAKULAM DISTRICT-686 692

      2         DISTRICT GEOLOGIST,
                CIVIL LINES, KAKKANAD, KOCHI-682 030


OTHER PRESENT:

                GP: SRI.A RAVIKRISHNAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.550 OF 2021(P)                   2




                                    JUDGMENT

The petitioner has approached this Court challenging Ext.P2 stop memo

that was issued to him by the 1 st respondent Village Officer. By the said stop

memo he is prevented from undertaking extraction of granite building stone from

an area, over which he claims to have the right to extract the said stones. In the

writ petition it is the case of the petitioner that Ext.P2 stop memo was issued

without any prior show cause notice and hence it is without jurisdiction.

2. While the contention with regard to lack of jurisdiction is one that

merits consideration in the instant case, I am of the view that inasmuch as an

adjudication of the said issue would take time, it would be prudent on the facts of

the instant case to direct the petitioner to treat Ext.P2 stop memo as a show cause

notice and file his objections regarding the same before the 1 st respondent

Geologist. On the Geologist receiving the objections from the petitioner, it would

be apposite for the Geologist to visit the premises of the petitioner and look into

the issue raised in the stop memo and take a decision in the matter of permitting

the petitioner to continue with the extraction of granite building stone from the

premises in question. Accordingly, I dispose the writ petition by directing the

petitioner to prefer his objections to Ext.P2 stop memo by treating the same as a

show cause notice, within a week from today. The 2 nd respondent Geologist shall,

on receipt of the objections from the petitioner, visit the premises of the petitioner

and ascertain the true state of affairs with regard to the allegations in the stop

memo and take a decision in the matter, after hearing the petitioner and

considering his objections. The 2nd respondent Geologist shall pass orders in the

matter as directed within three weeks from the date of receipt of the objections

from the petitioner.

3. Before parting with this case, I feel it necessary to point out that this

Court has come across a number of instances, where police officers and revenue

authorities have proceeded to issue stop memos to persons alleging violation of

the provisions of the Kerala Minor Mineral Concession Rules, 2015. While stop

memos are issued without any prior notice to the person who is alleged to have

contravened the provisions of the Rules, the authorities do not realise that on the

stop memo being issued, the person concerned is forced to stop further activities

in the premises and is relegated to an appropriate legal forum for agitating his

grievance against the stop memo. The said course of action, in my view, is not in

conformity with the rules of fair procedure. Accordingly, if the statutory

authorities concerned either notice, or apprehend, a violation of the provisions of

the Kerala Minor Mineral Concession Rules, by any person, the proper course

would be to cause a show cause notice to be served on the person concerned, and

thereafter to consider the reply to the said notice from the person concerned,

before taking appropriate action against the said person. In the notice so issued,

the authorities should clearly indicate how they are competent to issue the said

notice (the jurisdiction aspect) and may also direct the person concerned to refrain

from carrying on the alleged objectionable activities till such time as the matter

has been considered by the proper authority. The statutory authorities and their

delegates shall henceforth desist from passing stop memos in the nature of final

orders, without affording the person concerned an opportunity of showing cause

against the proposed course of action. The Registry shall forward a copy of this

judgment to the Secretary, Industries Department, so that appropriate circulars

are issued to inform the field formations within the State.

Sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE

sd

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1                A TRUE COPY OF THE QUARRYING PERMIT NO.
                          05/20-21/MM/GS/QP/DOE/3105/E2/17 DATED
                          17.06.2020.

EXHIBIT P1 A              TRUE COPY OF THE SURVEY MAP EXHIBITING THE
                          QUARRYING PERMIT AREA.

EXHIBIT P2                A TRUE COPY OF THE STOP MEMO BEARING NO.
                          01/2021 DATED 04.01.2021 ISSUED BY 1ST
                          RESPONDENT.