Kerala High Court
Palakkattu Granite Industries ... vs State Of Kerala on 3 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
WA NO. 1136 OF 2020
AGAINST THE JUDGMENT IN WP(C) 25012/2013 OF HIGH COURT OF KERALA
APPELLANT:
PLAKKATTU GRANITES (P) LTD.
PAYYANAMON P.O., KONNI,
REPRESENTED BY ITS MANAGING DIRECTOR, SRI.JACOB THOMAS
BY ADVS.
SRI.P.RAVINDRAN (SR.)
SRI.PAUL JACOB (P)
SRI.ENOCH DAVID SIMON JOEL
SRI.RONY JOSE
SRI.GEORGE A.CHERIAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS 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
OTHER PRESENT:
SRI.M.H.HANILKUMAR, SPECIAL GP(REVENUE)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07.10.2021,
ALONG WITH WA.682/2021, THE COURT ON 12.10.2021 DELIVERED THE
FOLLOWING:
W.A Nos. 1136/2020 & 682/2021 - 2 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
WA NO. 682 OF 2021
AGAINST THE JUDGMENT IN WP(C) 30510/2019 OF HIGH COURT OF KERALA
APPELLANT:
PLAKKATTU GRANITE INDUSTRIES (P) LTD
PAYYANAMON P.O. KONNI, REPRESENTED BY ITS MANAGING
DIRECTOR JACOB THOMAS.
BY ADVS.
SRI.P.RAVINDRAN (SR.)
SRI.ENOCH DAVID SIMON JOEL
SRI.S.SREEDEV
SRI.RONY JOSE
SHRI.CIMIL CHERIAN KOTTALIL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRIES,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2 THE DIRECTOR OF MINING AND GEOLOGY,
DIRECTORATE OF MINING AND GEOLOGY, PATTOM P.O.
THIRUVANANTHAPURAM 695 004.
3 GEOLOGIST,
MINING AND GEOLOGY DEPARTMENT, PATHANAMTHITTA 689 691.
4 TAHSILDHAR,
KONNI, PATHANAMTHITTA 689 691.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07.10.2021,
ALONG WITH WA.1136/2020, THE COURT ON 12.10.2021 DELIVERED THE
FOLLOWING:
W.A Nos. 1136/2020 & 682/2021 - 3 -
K.Vinod Chandran & Ziyad Rahman, JJ.
-------------------------------------------
Writ Appeal Nos.1136 of 2020 & 682 of 2021
-------------------------------------------
Dated, this the 12th October 2021
JUDGMENT
Vinod Chandran, J.
Official apathy is writ large in the above case
which facilitated, wanton illegal quarrying being let off
without any penalty; if the allegations are true. The
appellant who obtained quarrying leases is alleged to have
carried out illegal quarrying from an area in which there was
no lease granted, against which proceedings were initiated
and concluded. In appeal, the proceedings were set aside but
denovo consideration was directed. The further proceedings
carried out with inordinate delay and without complying with
the appellate order as also the provisions in the Kerala
Minor Mineral Concession Rules 1967 ('KMMC Rules' for
brevity) was under challenge.
2. The learned Single Judge found that Ext.P9 is a notice
and the petitioner had every opportunity to file objections,
which opportunity they did not avail of. Instead, the
petitioner preferred Ext.P10 review before the Government,
which could only be treated as an appeal. Reading Ext.P11
W.A Nos. 1136/2020 & 682/2021 - 4 -
order it was found that the State Government had initiated
the action after issuing notice to the petitioner and
conducted site inspection. Exts.P10 and P11 were found to
have been properly initiated and passed after assimilating
the situation in detail. On these findings, the writ petition
was dismissed. An order on consequential recovery action
Ext.P9 was challenged in W.P(C) No.8872 of 2018 which also
stood dismissed. Review petitions were filed against the
common judgment. The review against the judgment in
W.P(C)No.25012/2013 stood dismissed. The review from the
judgment in W.P(C)No.8872/2018 stood disposed of by Ext.R8(a)
order granting liberty to take all contentions against the RR
notice before the Revenue Recovery Officer. The further
proceedings pursuant to Ext.R8(a) order is challenged in the
writ petition from which WA 682/2021 arises and the judgment
in W.P(C)No.25012/2013 is challenged in W.A 1136/2020.
3. It is appropriate that we first consider the
appeal filed first in point of time. We have heard learned
Senior Counsel Sri.P.Raveendran instructed by Sri.Enoch David
Simon Joel, for the appellant and Sri. Hanil Kumar M.H
learned Special Government Pleader (Revenue) for the State.
4. Admittedly the appellant was granted a lease for
W.A Nos. 1136/2020 & 682/2021 - 5 -
the purpose of extracting granite building stones over an
area of 1.08 acres comprised in Sy.No.571/1A/34/4/1 and
571/1A/34/4/2 of Konnithazham village, Kozhencherry Taluk.
The above lease was dated 08.05.1999 and was for a period of
5 years. Subsequently, a similar lease was granted for 0.534
hectors of land comprised in Survey Nos.571/1A.12 and 571/1A-
34-Konnithazham village from 08.09.1999. On 20.08.1999,
purportedly, pursuant to an inspection carried out, the
Geologist Pathanamthitta issued a communication alleging
illicit quarrying of more than 748610 tonnes of granite
building stones from an area between the area of the two
leases granted to the appellant. Based on the measurement of
area and the assessment of illicit extraction by the Taluk
Surveyor, a demand notice dated 19.02.2000 was issued; which
is Ext.P1, demanding a royalty of Rs.1,19,64,960/-, value of
Rs.4,48,68,600/- and penalty of Rs.5000/-; totally
Rs.5,68,38,560/-. The action was under Rule 58(2) of the KMMC
Rules. An appeal was filed which ended in Ext.P2 order. The
appeal was allowed and Ext.P1 order was set aside. However,
the Director of Mining and Geology was directed to take
action as per Rule 58(2) of the KMMC Rules.
5. Ext.P3 notice was issued by the Director of
W.A Nos. 1136/2020 & 682/2021 - 6 -
Mining and Geology to which Ext.P4 reply was filed. An order
dated 04.01.2002 was issued, again imposing a penalty of
Rs.5,68,38,560/-. The petitioner challenged the above order
before this Court by O.P No.4734/2002. While the said
original petition was pending, the Government issued Ext.P6
order. By Ext.P6 the last para of the appellate order was
cancelled and modified to the following:
"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."
When the Original Petition came up for hearing the
Government produced Ext.P6 order which was marked therein as
Ext.R3(6). Ext.P5 hence was found to be without jurisdiction
and it was quashed. The learned Special Government Pleader
sought permission to review Ext.R3(6) order and pass fresh
orders in accordance with law. But the learned Single Judge
refused to express any opinion on the same.
6. Later Ext.P6 order was cancelled and Ext.P8
order was passed again directing the Director of Mining and
Geology to take further action. The Director by Ext.P9
reiterated the earlier order of the Geologist alleging
illegal quarrying and quantifying the quarried material at
W.A Nos. 1136/2020 & 682/2021 - 7 -
7,47,810 metric tonnes for which penalty of Rs.5,68,58,560/-
was demanded. Obviously no fresh proceedings were carried
out. The appellant filed Ext.P10 review petition before the
Government. The Government treated the review as an appeal
and rejected it by Ext.P11. Ext.P8, P9 and P11 are challenged
before this Court. Learned Senior Counsel argued that the
power of review cannot be time and again invoked and in any
event, before a prejudicial order is passed there should be
notice to the affected parties. It is also argued that the
appellate order at Ext.P2, but for the last paragraph
survives and in that context, a denovo consideration has to
be made. It is also pointed out that penalties under Rule
58(2) can only be imposed by the State Government which
powers can be delegated under Rule 62 by notification in the
gazette. A notification authorizing the Director was issued
only on 14.01.2003 (Annexure A1). Hence when the order was
passed, the Director did not have any jurisdiction to proceed
under Rule 58.
7. The learned Special Government Pleader would
contend that Ext.P5 was a notice and as held by the learned
Single Judge, without availing the opportunity to put forth
their objections, the appellant chose to file a review before
W.A Nos. 1136/2020 & 682/2021 - 8 -
the Government which was treated as an appeal and rejected.
The learned Special Government Pleader would also point out
that an inspection was conducted and a detailed report was
filed based on which the quantification was assessed and
penalty imposed. The learned Special Government Pleader
points out Ext.R1(a) and R1(b) produced by the 1st respondent
in the counter affidavit dated 28.05.2014 in support of his
contention.
8. Ext.P2 is the order passed by the Government
setting aside the order of the Geologist at Ext.P1. As has
been argued by the appellant, on a reading of Rule 58(2) and
62 a proceeding for imposition of penalty can only be taken
by the State Government or an officer duly
authorised/delegated by the State Government. When Ext.P1
order was passed there was no delegation and clearly, the
Geologist did not have authority to pass the order of penalty
under Rule 58(2). Even when the Government authorized an
officer, it was the Director of Mining and Geology who was
empowered to exercise the powers of State Government under
Rule 58. Hence Ext.P1 is one passed without any jurisdiction.
The appellate order has set aside the order of the Geologist
on merits and also on the question of jurisdiction and we
W.A Nos. 1136/2020 & 682/2021 - 9 -
would for the moment consider Ext.P2 order independently.
9. Ext.P2, no doubt set aside the order of the
Geologist. Ext.P2 detailed the main grounds of appeal and the
findings on each of the grounds were immediately answered.
The first ground was regarding lack of notice, absence of
collection of evidence and hearing of the contentions of the
appellant. The Department opposed the same asserting that a
public hearing was conducted on 13.08.1999 and despite the
presence of the representatives of the appellant, no defence
was offered when the question of encroachment was raised. The
appellate authority extracted Rule 58(2)and noticed Rule 62
and observed that there is no notification issued delegating
the power under Rule 58. The operative portion of the notice
issued by the Geologist dated 01.01.2000 was extracted and it
was observed that in the said notice the site inspection is
said to have been conducted on 19.08.1999. The appellant in
their reply dated 10.01.2000 denied the inspection; upon
which the Department contended that the inspection actually
took place on 13.08.1999 and so did the public hearing. The
appellate authority clearly found that no inspection took
place on 19.08.1999, as stated in the notice and the
inspection on 13.08.1999 was in a different context. It was
W.A Nos. 1136/2020 & 682/2021 - 10 -
also found that if at all encroachment was found in the
inspection, the Department ought to have issued notice to the
appellant and considered their contentions in defence; which
was not done. The Department having not taken any steps to
issue notice or furnish the basis of the demand made it was
found that the appellant should be given an opportunity to
raise his objections. Then in paragraph 11 of the appellate
order, the appellant's challenge to the assessment of the
illegal quarrying and the argument that it was downright
impossible to have carried out operations of that scale with
the machinery and infrastructure available to the appellant
was noticed. The appellate authority after consideration also
found that before arriving at the correct quantity, the basis
of assessment should be made available to the appellant and
his contentions against that reckoned properly. It was also
directed that the period of the alleged extraction and rate
of levy of royalty also has to be specified in the notice.
The last paragraph as it existed in Ext.P2 set aside the
order of the Geologist and directed the Director of Mining
and Geology to proceed under Rule 58(2).
10. Obviously, even when Ext.P2 order was passed the
Director of Mining and Geology was not authorized to act as
W.A Nos. 1136/2020 & 682/2021 - 11 -
the State Government under Rule 58(2), the notification
having come only in 2003. Presumably realising the same
Ext.P6 order was passed deleting the last para and confining
it to mere setting aside of the order impugned in appeal;
rightly so, since only the State Government could have
proceeded under Rule 58(2) at that point. The further
proceeding initiated after Ext.P2, based on the reservation
made therein, definitely falls to the ground by virtue of
Ext.P6 order. The challenge made to the further proceedings
pursuant to Ext.P2 hence stood allowed by Ext.P7 judgment
again based on Ext.R3(6) (Ext.P6-herein). The Government
sought a further review of Ext.R3(6) which was not
specifically permitted by the learned Single Judge. The
further attempt of the Government in passing Ext.P8 order,
cancelling Ext.P6 hence cannot be sustained. By mere issuance
of Ext.P8 the proceedings pursuant to Ext.P2 ie, Ext.P5
cannot be revived since it has been specifically set at
naught by the High Court in Ext.P7 judgment.
11. Now the further question is whether Ext.P8 can
be sustained on the ground that it is in exercise of the
powers of review conferred on the Government thus enabling
fresh proceedings under Rule 58(2). Can this be said to be in
W.A Nos. 1136/2020 & 682/2021 - 12 -
accordance with law would be an interesting question. As
noticed by us the notification under Rule 62 delegating the
power to be exercised under Rule 58(2) to the Director of
Mining and Geology was issued by Annexure A1 dated
14.01.2003. The writ petition was disposed of in 2008. If the
officers had acted with alacrity then Ext.P6 should have been
cancelled and the High Court should have been apprised of the
notification and the context in which Ext.P6 was issued. This
was not done and the Government produced Ext.P6 order before
the Court which resulted in the proceedings pursuant to
Ext.P2 being found to be without jurisdiction. Ext.P8 order
again is an order prejudicial to the appellant which should
have been passed only with notice to them.
12. Yet again, even if Ext.P8 stands, the further
proceedings cannot be sustained. Let us for a minute assume
that even Ext.P6 has not been passed and Ext.P2 remains as it
was originally; which was the object of Ext.P8 also. In 2012
when proceedings were taken by the Director of Mining And
Geology under Rule 58(2) it was perfectly within
jurisdiction, for the reason of delegation of powers made by
the State Government under Rule 62. However, Ext.P2 order on
merits cannot be wished away. In Ext.P2 it was found that no
W.A Nos. 1136/2020 & 682/2021 - 13 -
inspection was conducted on the date shown in the notice as
per the showing of the Department itself. The inspection
conducted on 13.08.1999 was also in a different context. The
appellant was not informed of the basis of the assessment,
the period during which the allegation is levelled and the
rates at which royalty was levied. Ext.P2 order set aside the
order of the Geologist on jurisdiction and also on the
factual findings. When the Director proceeds under Rule 58(2)
as directed in Ext.P2 necessarily it has to be a denovo
enquiry. An inspection has to be carried out with notice to
the appellant and the allegations along with the measurements
and assessment of illegal quarrying has to be communicated
and objections called for from the appellant. The basis of
the assessment of the illegally quarried material, the rates
at which royalty is levied and the period in which such
allegations are raised ought to be specified in the
communication. The objections should be considered and order
passed specifically refuting the grounds of objections and
indicating the period, rates and basis of assessment.
13. Ext.P9 does not show any of these and it does
not even speak of a prior notice having been issued. The
learned Special Government Pleader points to the heading of
W.A Nos. 1136/2020 & 682/2021 - 14 -
Ext.P9 which indicates it to be a 'notice' which opportunity
he asserts was not availed of by the appellant. We cannot
countenance the said argument for the simple reason that the
recitals in Ext.P9 do not indicate it to be a notice. The
operative portion, which is the last paragraph reiterate the
quantity illegally quarried in metric tonnes and the penalty
imposed under Rule 58(2). Ext.P9 does not even in form much
less in content, comply with any of the directions in Ext.P2.
The Special Government Pleader too relies on Ext.R1(a) and
(b) produced by the 1st respondent. That is an assessment made
in 1999 based on which Ext.P1 was issued. The very inspection
said to have been carried out for the purpose of the
assessment resulting in Ext.P1 order has been found to be
non-existent in Ext.P2. Further, if Ext.P9 was a mere notice,
in considering the appeal the Government ought to have
directed the appellant to put forth his contentions before
the Director. However, Ext.P11 confirmed the demand and
directed the Director of Mining and Geology to immediately
take proceedings for recovery. We find no reason to sustain
Exts.P9 and P11 orders also. We cannot approve of the
decision of the learned Single Judge which too stands set
aside. Exts.P8, P9 and P11 are set aside on the above
W.A Nos. 1136/2020 & 682/2021 - 15 -
reasoning.
14. The other appeal challenges the recovery initiated
pursuant to Ext.P9 order. The revenue recovery notice also
computed the interest from the date of the alleged illegal
quarrying, which alone was set aside. Since we have now in
the first appeal set aside the penalty order, we do not think
that the judgment impugned can be upheld. We hence set aside
the judgment and also Exts P6 and P7 notices.
15. Before leaving the matter we cannot but observe
that we fully agree with the observations made by the learned
Single Judge in W.P © 30510 of 2019, regarding the laxity or
abject indifference of the Officials of the Department of
Mining and Geology, though in a different context. If the
allegations are true, valuable natural resources have been
plundered and pillaged and the perpetrators have gone scot-
free, for reason of the apathy and indifference of the
Officers motivated by rampant corruption or rank
indifference. The Geologist passed an order without
jurisdiction and the Government set aside the same on that
ground and on the ground of violation of principles of
natural justice. Despite the absence of a delegation under
Rule 62 of the KMMC Rules, the Director was directed to
W.A Nos. 1136/2020 & 682/2021 - 16 -
proceed afresh. No notification was brought out even after
realising that the Director would be incompetent to proceed
without a delegation. When a delegation was made in 2003 no
steps were taken to initiate proceedings by the Director. The
Government without any reason issued Ext.P6 and did not
attempt to apprise the Court when the earlier writ petition
was heard that there is a delegation by notification and that
fresh proceedings be permitted. Even when fresh proceedings
were taken no attempt was made to comply with the directions
in the appellate order, Ext.P2. Incompetence of the highest
order or an ingenious conspiracy to absolve the polluter from
paying for his sins; the principle in Rule 58 of the KMMC
Rules, is the undisputed conclusion.
15. The learned Special Government Pleader prayed
for fresh initiation of proceedings, which request we decline
since its more than two decades from the alleged extraction.
Ordered accordingly.
Sd/-
K. Vinod Chandran
Judge
Sd/-
Ziyad Rahman A.A.
Judge
jma/-
W.A Nos. 1136/2020 & 682/2021 - 17 -
APPENDIX OF WA 682/2021
PETITIONER ANNEXURE
ANNEXURE 1 TRUE COPY OF THE INTERIM ORDER DATED
23.10.2020 IN W.A. 1136/2020 ON THE FILES OF
THIS HONBLE COURT.
ANNEXURE 2 TRUE COPY OF THE INTERIM ORDER DATED
13.11.2019 IN WPC 30510/2019 ON THE FILES OF
THIS HONBLE COURT.
