Larsen & Toubro Ltd vs State Of Kerala
2022 Latest Caselaw 1330 Ker

W.P.(C).No.2156/22
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              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
   TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
                       WP(C) NO. 2156 OF 2022
PETITIONERS:

             LARSEN & TOUBRO LTD
             L & T HOUSE, NAROTTAM, MARARJIMARG, BALLARD
             ESTATE, MUMBAI HAVING CONSTRUCTION DIVISION
             HEADQUARTERS, MOUNT POONAMALLEE ROAD, MANAPAKKAM,
             CHENNAI-600089, REPRESENTED BY ITS CONSTRUCTION
             MANAGER (CIVIL), MUTHUKUMAR RAMANATHAN, MKRP SITE
             PROJECT OFFICE, PRAYIMOODU, NEYYATTINKARA,
             THIRUVANANTHAPURAM DISTRICT.

             BY ADVS.
             V.G.ARUN (K/795/2004)
             V.JAYA RAGI
             R.HARIKRISHNAN (KAMBISSERIL)
             NEERAJ NARAYAN



RESPONDENTS:

     1       STATE OF KERALA
             REPRESENTED BY THE PRINCIPAL SECRETARY
             (INDUSTRIES), DEPARTMENT OF INDUSTRIES AND
             COMMERCE, SECRETARIAT, THIRUVANANTHAPURAM-695001.

     2       THE DIRECTOR,
             DIRECTORATE OF MINING AND GEOLOGY DEPARTMENT,
             KESAVADASAPURAM, PATTOM PALACE P.O.,
             THIRUVANANTHAPURAM-695004.
 W.P.(C).No.2156/22
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     3        THE GEOLOGIST,
              DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY,
              KESAVADASAPURAM, PATTOM PALACE P.O.,
              THIRUVANANTHAPURAM-695004.

     4        THE PROJECT DIRECTOR,
              NATIONAL HIGH WAY AUTHORITY OF INDIA, PROJECT
              IMPLEMENTATION UNIT, THIRUVANANTHAPURAM-695001.

     5        MIDHUN,
              S/O. BAHULEYAN, MELPURATHU THARISU VEEDU,
              PARASUVAIKKAL P.O., PARASUVAIKKAL VILLAGE,
              NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695504.

     6        MEENU,
              D/O. BAHULEYAN, MELPURATHU THARISU VEEDU,
              PARASUVAIKKAL P.O., PARASUVAIKKAL VILLAGE,
              NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695504.

              BY ADV K.A.SALIL NARAYANAN



OTHER PRESENT:

              S.KANNAN-SR.GP




       THIS     WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION      ON    01.02.2022,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.2156/22
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                          ANU SIVARAMAN, J.
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                         W.P.(c).No.2156 of 2022
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                 Dated this the 1st day of February, 2022

                                  JUDGMENT

1. This writ petition is filed with the following prayers:-

"i.Issue a writ of mandamus or any such other writ direction or order commanding 1st respondent to consider Exhibit P10 &P11 representations in accordance with the principle adumbrated under Rule 3A of the Kerala Minor Mineral Concession Rules, 2015 in accordance with the positive directions issued by the Division Bench of this Hon'ble Court in the case of Gireesh Kumar vs. RDO Thirssur & others reported in 2011(2) KHC 336 within a short time frame of 10 days and to further hold that if no decision is taken by the 1 st respondent then Ext. P10 application seeking exemption under Rule 3A shall be deemed to be allow;

ii. Issue a writ of mandamus or any such other writ direction or order commanding 1st respondent grant exemption to the petitioner for conducting mining operation within 25 meter distance from the abutting private property as envisaged under Rule 3A of the Kerala Minor Mineral Concession Rules, 2015;"

2. Heard the learned counsel for the petitioner, the learned

Government Pleader and the learned standing counsel W.P.(C).No.2156/22

appearing for the 4th respondent. In view of the directions

being issued, notice to respondents 5 and 6 is dispensed with.

3. The petitioner contends that the petitioner is a contractor

undertaking the four laning project of the Kazhakoottam -

Karode stretch of the National Highway Byepass in

Thiruvananthapuram district. It is submitted that the

petitioner had been issued with Exhibit P1 quarrying permit

for ordinary earth on condition that he would not carry out

any quarrying operations within a distance of 25 metres from

the boundary or boundaries of adjacent properties or 50

metres from any residential building except with the consent

of the owners of such property. It is submitted by the learned

counsel for the petitioner that respondents 5 and 6, who have

properties at the boundaries of the property from which

quarrying of ordinary earth was permitted, have submitted

objections with regard to quarrying in the petitioner's

property. It is submitted that a civil suit has also been filed by

the said respondents.

W.P.(C).No.2156/22

4. The learned counsel for the petitioner submits that the 'Form'

in which the quarrying permit for ordinary earth is granted is

Form -N under sub-rule (2) of Rule 9 of the Kerala Minor

Mineral Concession Rules, 2015. It is submitted that the said

Form had undergone an amendment by a notification dated

4.1.2020 providing that in case quarrying is for supply of

ordinary earth for Government works, the State Government

would be competent to grant previous permissions for

quarrying operations at or to any points within a distance of

25 metres from the boundary or boundaries of adjacent

properties. The learned counsel for the petitioner would

contend that Exhibit P10 request has been made by the

petitioner seeking such permission from the Government and

Exhibit P11 request has been made by the 4 th respondent also

supporting the request of the petitioner. It is contended that

the said requests are liable to be considered in accordance

with law.

5. The learned Government Pleader submits, on instructions, that

the amendment notified on 4.1.2020 effects an amendment W.P.(C).No.2156/22

only in the Form of the permission and that no corresponding

amendment has been made in the rules. It is, therefore,

contended that the remedy available to the petitioner is to file

an appeal as against Exhibit P1 and against Exhibit P12 before

the appellate authority and not to prefer a representation

before the Government.

6. The learned counsel for the petitioner submits that in view of

fact that there is extreme urgency in the situation as is

revealed from Exhibit P11 request made by the NHAI, the

issue requires a consideration at the hands of the Government.

7. In view of the fact that the 4 th respondent also supports the

case of the petitioner and has also approached the

Government with Exhibit P11, I am of the opinion that the

request made by the petitioner requires a consideration at the

hands of the Government, since it is admitted by all concerned

that further quarrying of ordinary earth will not be possible in

the premises in question, unless the 25 metres rule is relaxed

in public interest.

W.P.(C).No.2156/22

8. In the above view of the matter, there will be a direction to the

1st respondent to take up Exhibits P10 and P11 requests made

by the petitioner and the 4th respondent respectively, consider

and pass orders on the same, after hearing the petitioner, the

4th respondent as well as respondents 5 and 6. Appropriate

orders shall be passed at the earliest, after hearing the

concerned persons through any appropriate means, including

video conferencing within a period of ten days from the date of

receipt of a copy of this judgment. In view of the prevalent

Covid situation, the Principal Secretary or any officer duly

authorised by the Principal Secretary can conduct hearing and

pass orders on behalf of the Government as directed.

Writ petition is ordered accordingly.

Sd/-

Anu Sivaraman, Judge

sj W.P.(C).No.2156/22

APPENDIX OF WP(C) 2156/2022

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE QUARRYING PERMIT ISSUED BY THE DISTRICT GEOLOGIST AS PER PERMIT NO.7/2021-

22/QP/QE/2172/DOT/ML/2021 DATED 10.12.2021.

Exhibit P2 A TRUE COPY OF THE INTERIM ORDER DATED 23.12.2021 IN WP(C) NO.29901 OF 2021 PASSED BY THIS HON'BLE COURT.

Exhibit P3 THE TRUE COPY OF THE PLAINT IN O.S.NO.934 OF 2021 ON THE FILES OF THE MUNSIFF COURT, NEYYATTINKARA.

Exhibit P4 THE TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT, NEYYATTINKARA DATED 6.1.2022 IN I.A.NO.2/2021 IN O.S.NO.934 OF 2021.

Exhibit P5 THE TRUE PHOTOGRAPHS SHOWING THE SOUTHERN AND WESTERN BOUNDARY OF THE PROPERTY OF RESPONDENTS 5 & 6.

Exhibit P6 A TRUE COPY OF THE SHOW CAUSE NOTICE BEARING NO.DTO/2018 DATED 24.12.2021 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

Exhibit P7 A TRUE COPY OF THE REPLY LETTER DATED 27.12.2021 SENT BY THE PETITIONER TO THE 3RD RESPONDENT IN REPLY TO EXT.P6 SHOW CAUSE NOTICE.

Exhibit P8 A TRUE COPY OF THE INTERIM ORDER DATED 31.12.2021 IN WP(C) NO.30801 OF 2021. W.P.(C).No.2156/22

Exhibit P9 A TRUE COPY OF THE REPRESENTATION DATED 5.1.2022 BEARING NO.L&T/TI-

1C/RREC/MKTRP/1145 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

Exhibit P10 A TRUE COPY OF THE REPRESENTATION DATED 5.1.2022 BEARING NO.L&T/TI-

IC/RREC/MKTRP/1144 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT UNDER RULE 3A OF KERALA MINOR MINERAL CONCESSION RULES, 2015.

Exhibit P11 A TRUE COPY OF THE LETTER DATED 10.1.2022 BEARING NO.NHAI/PIU-

TVM/300/2021-22/2536 SENT BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT.

Exhibit P12 THE TRUE COPY OF THE ORDER DATED 7.1.2022 BEARING NO.1040/2021-

22/2172/DOT/ML/2021 PASSED BY THE 3RD RESPONDENT GEOLOGIST.

True copy

PS to Judge