Kerala High Court
Jithu Jeeva vs State Of Kerala on 28 May, 2024
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 16231 OF 2021
PETITIONER:
JITHU JEEVA,AGED 24 YEARS
S/O JEEVA M A, RESIDING AT MEDAYIL HOUSE, THENGAKAL P
O VANDIPERIYAR, IDUKKI DISTRICT-685 501.
BY ADVS.
THOMAS ABRAHAM
MERCIAMMA MATHEW
R.ANANTHAPADMANABAN
ASWIN.P.JOHN
THAYYIB SHA P.S.
MANJULA PRASAD
PAUL BABY
RESPONDENTS:
1 STATE OF KERALA,REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF INDUSTRIES AND COMMERCE, GOVERNMENT OF
KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 DISTRICT COLLECTOR,
IDUKKI DISTRICT, COLLECTORATE, IDUKKI-685 584.
3 GEOLOGIST,DISTRICT OFFICE OF MINING AND GEOLOGY, MINI
CIVIL STATION, THODUPUZHA P.O., IDUKKI DISTRICT-685
584.
4 THE TAHSILDAR(LR)
TALUK OFFICE, PEERUMEDU TALUK, PEERUMEDU P.O-685 531.
5 THE VILLAGE OFFICER,ELAPPARA VILLAGE, PEERMEDU TALUK,
IDUKKI DISTRICT, PIN-685 501.
6 VANDIPERIYAR GRAMA PANCHAYAT
PANCHAYAT OFFICE, VANDIPERIYAR P.O-685 533, IDUKKI
DISTRICT, REPRESENTED BY ITS SECRETARY
7 ADDL R7:THE CHIEF SECRETARY,GOVERNMENT OF KERALA,
W.P. (C) 16231 & 16238 of 2021 :2:
SECRETARIAT, THIRUVANANTHAPURAM - 695001
8 ADDL.R8:THE SECRETARY
REVENUE DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM - 695001
ADDL.R7 & R8 ARE IMPLEADED AS PER ORDER DATED
15.09.2021 IN IA NO.1/2021 IN WPC NO.16231/2021.
SRI.JUSTIN JACOB, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2024 ALONG WITH WP(C).16238/2021, THE COURT ON 28.05.2024
DELIVERED THE FOLLOWING:
W.P. (C) 16231 & 16238 of 2021 :3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 16238 OF 2021
PETITIONER:
JEEVA M.A.
AGED 55 YEARS, S/O. LATE J AZARIAH, RESIDING AT
MEDAYIL HOUSE, THENGAKAL P.O., VANDIPERIYAR, IDUKKI
DISTRICT-685 501.
BY ADVS.
THOMAS ABRAHAM
ANIL K.NAIR
MERCIAMMA MATHEW
ASWIN.P.JOHN
R.ANANTHAPADMANABAN
THAYYIB SHA P.S.
PAUL BABY
MANJULA PRASAD
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF INDUSTRIES
AND COMMERCE, GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DISTRICT COLLECTOR,
IDUKKI DISRICT, COLLECTORATE, IDUKKI-685 584.
3 THE GEOLOGIST
DISTRICT OFFICE OF MINING AND GEOLOGY, MINI CIVIL
STATION, THODUPUZHA P.O., IDUKKI DISTRICT, 685 584.
4 THE TAHSILDAR (LR)
W.P. (C) 16231 & 16238 of 2021 :4:
TALUK OFFICE, PEERUMEDU TALUK, PEERUMEDU P.O.- 685
531.
5 THE VILLAGE OFFICER
ELAPPARA VILLAGE, PEERMEDU TALUK, IDUKKI DISTRICT,
PIN-685 501.
6 VANDIPERIYAR GRAMA PANCHAYATH
PANCHAYATH OFFICE, VANDIPERIYAR P.O.- 685 533, IDUKKI
DISTRICT, REPRESENTED BY ITS SECRETARY.
7 ADDL. R7: THE CHIEF SECRETARY
GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM
- 695001
8 ADDL.R8: SECRETARY, REVENUE DEPARTMENT
GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM
- 695001
ADDL.R7 & R8 ARE IMPLEADED AS PER ORDER DATED
15.09.2021 IN IA NO.1/2021 IN WPC NO. 16238/2021.
SRI.JUSTIN JACOB, GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2024 ALONG WITH WP(C).16231/2021, THE COURT ON 28.05.2024
DELIVERED THE FOLLOWING:
W.P. (C) 16231 & 16238 of 2021 :5:
JUDGMENT
Since common issues arise for consideration in these writ
petitions, they are disposed of by this common judgment. The
petitioner in W.P. (C) No. 16238 of 2021 is the father of the
petitioner in W.P. (C) No. 16231 of 2021. Both had submitted
individual application for No Objection Certificate (NOC) for
quarrying granite from 9 Hectors of Government land comprised
in Sy. No. 184/1 of Elappara Village in Peerumedu Taluk in
Idukki District. The issue involved relates to the non
consideration of those applications. For the sake of convenience,
unless otherwise expressly indicated, the status of the parties and
the exhibits referred to hereinbelow shall be as obtaining in W.P.
(C) No.16231 of 2021.
2. W.P. (C) No. 16231 of 2021: The petitioner's father held
a quarrying permit in respect of his property having an extent of
W.P. (C) 16231 & 16238 of 2021 :6:
17.06 Ares comprised in Sy. No. 184 (1) of Elappara Village in
Peerumedu Taluk in Idukki District in the year 2014. He had
obtained necessary licenses and permits from all authorities
including the Department of Mining and Geology, Pollution
Control Board, Deputy Chief Controller of Explosives for
commencing the operation of the quarry. However, the various
licenses were not simultaneously granted. Though the quarry
began functioning in February, 2015, the quarrying permit issued
by the Mining and Geology Department expired by the next
month. In the meantime, there occurred a change in the
Government policy whereby it was decided that quarrying
permits cannot be issued in land assigned as patta land. As a part
of the said decision, the entire quarrying activity had to be
stopped though elaborate infrastructural arrangements were
made for commencing the quarrying work.
W.P. (C) 16231 & 16238 of 2021 :7:
3. There is a Government para puramboke lying adjacent to
the patta property of the petitioner's father and when there
occurred change in Government policy regarding issuance of
permits in land assigned as patta land, the petitioner submitted
Ext. P1 application dated 18.06.2018 for NOC for quarrying
granite from 9 Hectors Government land comprised in Sy. No.
184/1 of Elappara Village. As per Exts. P2 to P4, the Village
Officer, the Taluk Surveyor and the Tahsildar (LR)
recommended issuance of NOC to the petitioner.
4. While so, a writ petition, W.P.(C)No.20464 of 2019 was
filed before this Court seeking direction to conduct enquiry
regarding the genuineness of applications for issuance of NOC
for quarrying lease in Survey No.187/1 of Elappara Village in
Peerumade Taluk. Though the said writ petition did not relate to
the petitioner or his application for NOC, Ext. P1 application for
W.P. (C) 16231 & 16238 of 2021 :8:
NOC was not further processed in view of the pendency of the
said writ petition. The aforesaid writ petition was disposed of by
this Court by Ext. P5 judgment dated 24.01.2020 recording the
submission of the Government that the Government have
already initiated steps to prepare guidelines for grant of NOC for
mining of minerals from Government lands and directing the
Government to expedite the steps.
5. Pursuant to Ext. P5 judgment, the process for granting
NOC was reopened by the District Collector, who by Ext. P6
communication dated 05.06.2020, sought report from the
Geologist as a part of the procedure for grant of NOC for
quarrying in the Government land. In response to Ext. P6, the
Senior Geologist sent Ext. P7 communication dated 16.06.2020
reporting that the property in question did not fall under the
categories classified as one having very high, high or moderate
W.P. (C) 16231 & 16238 of 2021 :9:
susceptibility to landslides or within ecologically sensitive area
and that it was situated more than 13 kms away from a National
Park/Wildlife sanctuary and that further steps can be taken as per
the procedure for issuance of NOC by the Revenue Department.
6. The petitioner states that, despite the report of the
Geologist, no decision is taken by the District Collector on the
petitioner's application for the reason that there is a general
order; G.O.(Ms) No.28/2021/RD dated 28.01.2021 (Ext. P8)
passed by the Government in respect of mining of minerals from
Government lands whereby the NOC's for quarries are to be put
up for bidding. According to the petitioner, this would pave way
to the quarries in the State being limited to the hands of a few
wealthy persons, creating a monopoly and would affect
applicants like the petitioner, who seek beneficial enjoyment of
adjacent Government puramboke land. The petitioner also states
W.P. (C) 16231 & 16238 of 2021 :10:
that, after Ext. P5 judgment, NOC was granted by the District
Collector in Peerumedu Taluk for another applicant.
7. The petitioner, therefore, submitted Ext. P9
representation dated 05.07.2021 before all the concerned
authorities to consider his case as different from those generally
covered by Ext. P8 G.O as the petitioner had undergone the
entire process as per the existing policy and also undertaken
huge financial commitments to execute the work as per the
requirements which existed. The petitioner also pointed out that
the inordinate delay in granting final orders on his application
does not, in any way, reflect inaction or indifference on his part.
The respondents have not responded to Ext. P9. Accordingly, the
petitioner has filed this writ petition for direction to quash Ext.
P8 to the extent it affects the petitioner in the matter of
sanctioning of NOC applied for in Ext. P1 and for direction to
W.P. (C) 16231 & 16238 of 2021 :11:
the respondents 1, 7 and 8 to modify Ext. P8 G.O to the effect
that the same does not affect the petitioner in the matter of
sanctioning of NOC considering the exceptional circumstances
of his case and not to give retrospective application to Ext. P8
G.O. hampering the issuance of NOC in cases like that of the
petitioner where the applications submitted have been acted
upon on the basis of the policy which existed prior to the
issuance of Ext. P8. A direction is also sought to the 2 nd
respondent to issue necessary NOC to the petitioner to
commence operation of the quarry in 10.9067 hectares of
government land in Sy. No.184/1A in Elappara Village taking
into account the recommendations reflected in Exts. P2 to P4
and P7.
8. W.P. (C) No. 16238 of 2021: As stated, the petitioner in
this writ petition is the father of the petitioner in W.P. (C) No.
W.P. (C) 16231 & 16238 of 2021 :12:
16231 of 2021. He submitted Ext. P6 application for NOC for
quarrying granite from 9 Hectors of Government land comprised
in Sy. No. 184/1 of Elappara Village in Peerumedu Taluk in
Idukki District, in respect of the same land for which NOC is
applied for by the petitioner in W.P. (C) No. 16231 of 2021. By
Exts. P7 to P9 and P12, the Village Officer, the Taluk Surveyor,
the Tahsildar (LR) and Senior Geologist had recommended
issuance of NOC to the petitioner. However, no decision is
taken by the District Collector on the petitioner's application for
the reason that there is a general order; G.O.(Ms)
No.28/2021/RD dated 28.01.2021 (Ext. P13) passed by the
Government in respect of NOC for mining of minerals from
Government lands. Ext. P14 representation filed by the
petitioner before all concerned authorities was not responded to.
Accordingly, this writ petition is filed. The reliefs sought for,
W.P. (C) 16231 & 16238 of 2021 :13:
are similar to those in W.P. (C) No. 16231 of 2021.
9. According to the petitioners, there is inordinate delay in
considering their applications for issuance of NOC for quarrying
lease. Had the District Collector not kept the petitioners'
application pending for a long time, they would have been able
to commence the quarrying operation earlier. The applications of
the petitioners for NOC for quarrying lease are dated
18.06.2018. The Village Officer, the Taluk Surveyor, the
Tahsildar (LR) and the Senior Geologist had recommended
issuance of NOC to the petitioners before the issuance of Ext. P8
guidelines. It is contended that Ext. P8 guidelines for grant of
NOC for mining of minerals from Government lands issued on
28.01.2021 cannot stand in the way of considering the
applications of the petitioners submitted prior to the said
guidelines and their applications have to be decided on the basis
W.P. (C) 16231 & 16238 of 2021 :14:
of the guidelines then existed. It is further contended that Ext. P8
cannot be applied with retrospective effect and change of policy
shall not hamper the petitioners' project for quarrying. The
petitioners had undergone the entire process as per the policy
then prevalent and their applications cannot be revisited in view
of Ext. P8.
10. Separate counter affidavits dated 06.06.2022,
identically worded, have been filed by the Secretary to
Government, Revenue Department, the 8th respondent in the writ
petitions wherein it is stated that as per Rule 27 (2) (d) of the
Kerala Minor Mineral Concession Rules, 2015 (hereinafter
called the 'Rules', for short) an application for grant of quarrying
lease, where minor mineral is to be removed from the
Government land, shall be accompanied with an NOC issued by
the District Collector concerned, to the effect that they have no
W.P. (C) 16231 & 16238 of 2021 :15:
objection for the extraction of minor mineral from the said land.
For issuance of permit for quarrying, similar provisions and
procedure contemplated under Rule 4 of the Rules have to be
followed. It is stated that Idukki District consists of very
ecological sensitive areas prone to natural calamities including
landslides and before issuing NOC, it is inevitable to call for
reports from various departments and the delay in considering
the applications of the petitioners for NOC is not deliberate. It is
further stated that the Government had issued a communication
dated 18.01.2020 (Ext. R8(b)) stating that grant of NOC for
quarrying shall be considered only after preparing the guidelines
for issuance of NOC for mining of minerals from Government
lands. The counter affidavits narrate the following draw backs in
the past system of issuance of NOC for mining of minerals from
Government lands:-
W.P. (C) 16231 & 16238 of 2021 :16:
"a. Since it was first come first serve, the people who have
access to the information will be on a comparative advantage,
as market competition was restricted.
b. The additional revenue, apart from royalty was the
collection of seigniorage/compensation which is very less,
when compared to the market value of the mineral. There is
no better income for the State, other than the prefixed
minuscule seigniorage.
c. Those who have received NOC in advance may not
commence production for years which would invariably result
in monopolizing the entire sector.
d. There was no proper mechanism for assessment of quantity
of mineral, extracted and for accounting of
seigniorage/compensation.
e. There was no mechanism to collect the dues from the
concession holder. Usually the concession holder abandons
the quarry, without proper closure, after the period of NOC.
f. There was no procedure/guideline for imposing penalty for
violation of conditions of NOC and for illegal mining from the
Government land. Over and above, there was lack of co-
ordination between Department of Revenue and Department
of Mining and Geology."
It is stated that Ext. P8 Guidelines have been issued so as to
provide different stakeholders with a level playing field in the
matter of issuance of NOC, to bring transparency in the matter
and to protect the revenue of the State Exchequer. It is further
stated that the petitioners have no statutory or fundamental right
W.P. (C) 16231 & 16238 of 2021 :17:
to obtain mining lease in Government land.
11. A reply affidavit is filed by the petitioners denying the
averments in the counter affidavits filed by the 8 th respondent
and stating that during the pendency of their applications,
similarly situated persons were granted NOC.
12. Additional counter affidavit is placed on record by the
8th respondent stating that such persons who have been issued
NOC stand on different footing and that no NOC has been
granted in Peerumedu Taluk after 16.03.2018. Additional reply
affidavit is filed by the petitioners producing Ext. P12 judgment
wherein this Court directed the application of the petitioner
therein for NOC to be considered in the light of the procedure in
force, without reference to Ext. P8 G.O.
13. Heard Sri. Thomas Abraham, the learned counsel for
the petitioners, Sri. Arun Thomas, the learned counsel for the 6 th
W.P. (C) 16231 & 16238 of 2021 :18:
respondent Panchayat and Sri. S. Kannan, the learned senior
Government Pleader.
14. As per Entry 18 of List II of the Seventh Schedule to
the Constitution of India, it is for the State to enact legislation
with regard to land, that is to say, right in or over land. Under
Article 162 of the Constitution of India, the executive powers of
the State Government extend to all matters in respect of which
the Legislature of the State has power to make laws. Ext. P8
guidelines for grant of NOC for mining of minerals from
Government lands are issued by the Government in terms of the
power under Entry 18 of List II of Seventh Schedule to the
Constitution of India. The State Government is competent to
frame guidelines for grant of NOC for mining of minerals from
Government land.
15. Chapter V of the Rules deals with grant of quarrying
W.P. (C) 16231 & 16238 of 2021 :19:
leases in respect of lands in which the mineral or mineral rights
vests in the Government. Rule 27 deals with application for
grant of quarrying lease. Rule 27 (2) (d) provides that an
application for grant of quarrying lease shall be accompanied by
No Objection Certificate from the District Collector in the case
of revenue poramboke lands to the effect that they have no
objection for extraction of minor mineral by the applicant
subject to the provisions of the Rules. Rule 31 provides that
when two or more persons have applied for quarrying lease in
respect of the same land, the applicant whose application was
received earlier shall have preferential right for grant of lease.
Rule 33 deals with disposal of application for quarrying lease
after obtaining NOC from the competent authority. Sri. Thomas
Abraham would contend that the applications for NOC were
submitted before the District Collector on 18.06.2018 and there
W.P. (C) 16231 & 16238 of 2021 :20:
was inordinate delay in considering the applications. Had the
District Collector not kept the petitioners' applications pending
for such a long time, they would have been able to commence
quarrying operations earlier. Sri. Kannan would contend that the
reports of the Village Officer, the Taluk Surveyor, the Tahsildar
(LR) and the Senior Geologist cannot be construed as
recommendations for issuance of NOC. He submits that Idukki
District consists of ecological sensitive areas prone to natural
calamities including landslides and that, before issuing NOC, it
is inevitable for the District Collector to call for reports from
various departments and the delay in considering the
applications of the petitioners for NOC is not deliberate. Sri.
Kannan also refers to W.P.(C) No.20464 of 2019 which was
pending before this Court regarding the framing of policy to be
followed by the Government for issuance of NOC for quarrying
W.P. (C) 16231 & 16238 of 2021 :21:
operations in Government land. Reference is also made to Ext.
R8(b) communication dated 18.01.2020 of the Principal
Secretary to Government, Revenue Department and further
clarification dated 13.04.2021 which instructs that all
applications for NOC for quarrying including pending
applications shall be considered only after preparing the
guidelines for issuance of NOC for mining of minerals from
Government lands. Accordingly, it is contended that there was
no deliberate delay in considering the applications and it was
pending framing of policy for issuance of NOC for quarrying
operations in Government land that the petitioners' applications
were not considered. Sri. Kannan refers to the decision of this
Court in Ajitha Joshy v. State of Kerala and others [2021(1)
KHC 174: 2021 (1) KLT 169], wherein, referring to Ext. R8(b)
communication, the Division Bench observed that, when the
W.P. (C) 16231 & 16238 of 2021 :22:
Government have taken up the task of framing guidelines for
issuance of NOC for quarrying in Government land and, in the
meanwhile, directed the District Collectors to withhold
consideration of the application for grant of NOC, the same
requires to be considered. It is further contended that having
issued guidelines in Ext. P8 for issuance of NOC for quarrying
operations in Government lands, the applications of the
petitioners can be considered only in accordance with Ext. P8. I
find force in the argument of the learned Government Pleader.
There is sufficient justification in not considering the
applications of the petitioners during the framing of policy to be
followed by the Government for issuance of NOC for quarrying
operations in Government land and in the light of the
instructions issued to the District Collectors to withhold
consideration of the application for grant of NOC till the framing
W.P. (C) 16231 & 16238 of 2021 :23:
of guidelines. There was no challenge to such direction to
withhold consideration of applications and the petitioners did not
approach this Court seeking expeditious consideration of their
applications for NOC.
16. The next contention of Sri. Thomas Abraham is that
since the applications of the petitioners for NOC were submitted
prior to Ext. P8 guidelines, their applications are to be decided
on the basis of the guidelines that existed prior to Ext. P8. The
learned counsel would rely on Ext. P12 judgment wherein this
Court directed the application of the petitioner therein for NOC
to be considered in the light of the procedure in force on the date
of application, without reference to Ext. P8 G.O. The said
contention of the petitioners' counsel is opposed by Sri. Kannan
relying on the decisions of the Hon'ble Supreme Court in State
of Tamil Nadu v. M/s. Hind Stone and Others [(1981) 2 SCC
W.P. (C) 16231 & 16238 of 2021 :24:
205: AIR 1981 SC 711) and State of Rajasthan and Others v.
Sharwan Kumar Kumawat etc. [AIR 2023 SC 3586: AIR
OnLine 2023 584].
17. To understand the issues and the findings in Ext. P12
judgment, it will be apposite to refer to paragraphs 3, 11 and 12
thereof which read as under:
"3. It is submitted by the learned counsel for the petitioner that
the petitioner had made an application for NOC for the
purpose of obtaining a quarrying permit in Government land
on 01.01.2018. It is submitted that the application was sent for
enquiry and report and Ext.P2 report was generated on
01.02.2018. When no orders were passed on the request for
NOC, the petitioner approached this Court and by Ext.P3
judgment, this Court directed the 2nd respondent to complete
the measurement of the property by availing services of the
Taluk Surveyor and to submit a report before the 1 st
respondent-District Collector. The 1st respondent was directed
to process the application forthwith."
xxx xxx xxx
"11. Having considered the contentions advanced on either
side, I notice that the application for NOC was, admittedly,
submitted on 01.01.2018. By Ext.P3 judgment, this Court had
specifically directed the consideration of the same after
obtaining reports from the Tahsildar and the Taluk Surveyor.
W.P. (C) 16231 & 16238 of 2021 :25:
The reports were, admittedly, before the respondents in July,
2018. In view of Ext.P3 judgment, there was no justifiable
reason for the respondents to have delayed the consideration
of the application inordinately. Even if the contention raised
by the respondents that the delay occurred due to the floods in
2018 is accepted, in view of Ext.P3 judgment, the 1st
respondent was duty bound to take up the application, at least,
as soon as the reminder made by the petitioner was submitted.
Even as on that date, that is, on 08.06.2020, there was no
order revising the procedure.
12. In the above view of the matter, I am of the opinion that
the application submitted by the petitioner for NOC is liable to
be considered and disposed of in the light of the procedure in
force, without reference to the Government Order dated
28.01.2021. Appropriate orders shall be passed in the
application submitted by the petitioner for NOC, after
considering all relevant aspects of the matter, within a period
of six weeks from the date of receipt of a copy of this
judgment, without reference to the Government Order dated
28.01.2021."
(underlining supplied by this Court)
In Ext. P12 judgment, the petitioner therein had sought for and
obtained a direction from this Court for an early consideration of
his application for NOC by the District Collector. This Court, in
Ext. P12 judgment, therefore, held that in view of the directions
W.P. (C) 16231 & 16238 of 2021 :26:
in Ext. P3 judgment therein, the District Collector was duty
bound to take up the application for NOC submitted by the
petitioner and having failed to do so, it was held that the
application for NOC is liable to be considered and disposed of in
the light of the procedure in force, without reference to the
Government Order dated 28.01.2021. In the case at hand, no
direction was sought or obtained by the petitioners from this
Court for an early consideration of their application for NOC.
The petitioners, who had only submitted application for NOC,
which was not acted upon before the issuance of Ext. P8
guidelines, cannot seek any direction for consideration of the
application for NOC without reference to Ext. P8. Therefore, I
am of the view that Ext. P12 judgment of this Court cannot be
made applicable in the facts and circumstances of the present
case. The pendency of the application for NOC did not create
W.P. (C) 16231 & 16238 of 2021 :27:
any right in favour of the petitioners. Therefore, the contention
of the petitioners that their applications are to be decided on the
basis of the guidelines that existed prior to Ext. P8 cannot be
accepted.
18. In Hind Stone (supra), the Hon'ble Supreme Court held
that the action of the Government in keeping applications for
lease pending for long and later, rejecting them by applying a
rule made subsequently, is not open to challenge. The Court
observed that no one has a vested right to the grant of lease and
none can claim a vested right to have an application for grant of
lease to be dealt with in a particular way, by applying particular
provisions and that in the absence of any vested right, the
application has necessarily to be dealt with according to the rules
in force as on the date of disposal of the application despite the
fact that there is long delay since the making of the application.
W.P. (C) 16231 & 16238 of 2021 :28:
Paragraph '13' of the said decision reads as follows:
"13. Another submission of the learned counsel in connection
with the consideration of applications for renewal was that
applications made sixty days or more before the date of G.O.
Ms. No. 1312 (December 2, 1977) should be dealt with as if
R.8C had not come into force. It was also contended that even
applications for grant of leases made long before the date of
G.O. Ms. No. 1312 should be dealt with as if R.8C had not
come into force. The submission was that it was not open to
the Government to keep applications for the grant of leases
and applications for renewal pending for a long time and then
to reject them on the basis of R. 8C notwithstanding the fact
that the applications had been made long prior to the date on
which R.8C came into force. While it is true that such
applications should be dealt with within a reasonable time, it
cannot on that account be said that the right to have an
application disposed of in a reasonable time clothes an
applicant for a lease with a right to have the application
disposed of on the basis of the rules in force at the time of the
making of the application. No one has a vested right to the
grant or renewal of a lease and none can claim a vested right
to have an application for the grant or renewal of a lease dealt
with in a particular way, by applying particular provisions. In
the absence of any vested rights in anyone, an application for
a lease has necessarily to be dealt with according to the rules
in force on the date of the disposal of the application despite
the fact that there is a long delay since the making of the
application. We are, therefore, unable to accept the submission
of the learned counsel that applications for the grant or
renewal of leases made long prior to the date of G.O. Ms. No.
1312 should be dealt with as if R.8C did not exist."
W.P. (C) 16231 & 16238 of 2021 :29:
19. Relying on the said decision, the Hon'ble Supreme
Court, in Sharwan Kumar (supra), observed as follows:
"17. It is far too settled that there is no right vested over an
application made which is pending seeking lease of a
Government land or over the minerals beneath the soil in any
type of land over which the Government has a vested right and
regulatory control. In other words, a mere filing of an
application ipso facto does not create any right. The power of
the Government to amend, being an independent one, pending
applications do not come in the way. For a right to be vested
there has to be a statutory recognition. Such a right has to
accrue and any decision will have to create the resultant
injury. When a decision is taken by a competent authority in
public interest by evolving a better process such as auction, a
right, if any, to an applicant seeking lease over a Government
land evaporates on its own. An applicant cannot have an
exclusive right in seeking a grant of license of a mineral
unless facilitated accordingly by a statute."
20. In Ajitha Joshy (supra), the appellant therein submitted
an application dated 25.01.2019 before the District Collector for
issuance of NOC to conduct quarrying operations in the
Government puramboke land. On the basis of the
communication of the Principal Secretary, Department of
W.P. (C) 16231 & 16238 of 2021 :30:
Revenue, dated 18.01.2020 (Ext. R8(b) herein), the District
Collector, rejected the application stating that grant of NOC for
quarrying could be considered only after preparing the
guidelines for issuance of NOC. The appellant contended that
her application dated 25.01.2019 was rejected on the basis of a
Government order issued on 12.12.2019 (Ext. P8 herein) and
that the rules applicable at that point of time ought to have been
followed in her case. Rejecting the said contention, the Division
Bench held as under:
"16. Contention of the appellant that the application submitted
by her dated 25/01/2019 before the 3rd respondent, being
anterior in point of time, ought to have been considered, cannot
be countenanced. There cannot be different yardsticks, insofar
as applicability of the guidelines, yet to be framed. Merely
because the appellant has submitted an application under the
KMMC Rules, 2015, she has no absolute right to conduct
quarry. Admittedly, mineral is a wealth of the State. Right to
permit quarrying mineral, is the prerogative of the State."
W.P. (C) 16231 & 16238 of 2021 :31:
Facts in the present cases are similar, and in view of the dictum
laid down in Ajitha Joshy (supra), the contention of the
petitioners that their applications are to be decided on the basis
of the guidelines that existed prior to Ext. P8 is only to be
rejected.
21. Identical question came to be considered by this Court
in Sheriff A.H. v. State of Kerala [2024 KHC 1001: 2024 KHC
OnLine 1001: 2024 (1) KHC SN 6: 2024 KER 13: 2024
LiveLaw (Ker) 14] wherein this Court held that the application
for NOC submitted prior to Ext. P8 guidelines has to be
considered only in the light of Ext. P8. Sri. Thomas Abraham
has sought to distinguish the said judgment on the ground that
unlike in Sheriff (supra), the petitioners have assailed the
guidelines and in the case of the petitioners, there was
W.P. (C) 16231 & 16238 of 2021 :32:
favourable recommendations to grant NOC by the Village
Officer, the Taluk Surveyor, the Tahsildar (LR) and the Senior
Geologist. The petitioners, who had only submitted application
for NOC, which was not acted upon before the issuance of Ext.
P8 guidelines cannot seek any direction for the consideration of
the NOC without reference to Ext. P8 guidelines. Merely
because the petitioners have submitted the application for NOC
before the issuance of guidelines, they have no right to seek
consideration of the application on the basis of the guideline that
existed prior to Ext. P8. I do not find any reason to take a
different view.
22. Sri. Thomas Abraham sought to distinguish the decision
in Hind Stone (supra) contending that the Hon'ble Supreme
Court in the said decision was considering the case of grant of
lease and not NOC. Under Rule 27 (2) (d) of the Rules, every
W.P. (C) 16231 & 16238 of 2021 :33:
application for grant of quarry lease in a Revenue puramboke
land shall be accompanied by NOC from the District Collector.
Since NOC from the District Collector is a pre-requisite for
considering the application for grant of quarry lease, the
application for NOC has necessarily to be dealt with according
to the rules in force as on the date of disposal of the application
for NOC. Sri. Thomas Abraham also made an attempt to contend
that the applications of the petitioners are not under Rule 27 (2)
(d), but under Rule 4 (2) (d) of the Rules. I am afraid, the said
contention is not in consistent with the pleadings, Ext. P1
application and Ext. P7 report of the Geologist.
In Sulekha Singh and Company and others v. State of
U.P and others [(2016) 4 SCC 663], the Hon'ble Supreme Court
held that no person has any fundamental right to claim that he
should be granted mining lease or licence or permitted
W.P. (C) 16231 & 16238 of 2021 :34:
reconnaissance operation in Government land. Ext. P8
guidelines have been issued to bring transparency in the matter
of issuance of NOC for mining of minerals from Government
land. The State Government have every authority and
competent to frame guidelines for issuance of NOC for
quarrying in Government land. No direction can be issued to
Government to refrain from enforcing Ext. P8 guidelines which
has the force of law.
The writ petitions fail and are, dismissed.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
spc/
W.P. (C) 16231 & 16238 of 2021 :35:
APPENDIX OF WP(C) 16238/2021
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE QUARRYING PERMIT ISSUED
BY THE DEPARTMENT OF MINING AND GEOLOGY TO
THE PETITIONER FOR RUNNING HIS QUARRY.
Exhibit P2 THE TRUE COPY OF THE CONSENT TO OPERATE
DATED ON 25.4.2014 ISSUED BY THE POLLUTION
CONTROL BOARD.
Exhibit P3 THE TRUE COPY OF THE LICENSE ISSUED BY
VANDIPERIYAR GRAMA PANCHAYATH.
Exhibit P4 THE TRUE COPY OF THE APPROVAL DATED
20.8.2014 SANCTIONED BY THE DEPUTY CHIEF
CONTROLLER OF EXPLOSIVES, CHENNAI.
Exhibit P5 THE TRUE COPY OF THE LICENSE ISSUED BY THE
DEPUTY CONTROLLER OF EXPLOSIVES ON
13.2.2015.
Exhibit P6 THE TRUE COPY OF THE APPLICATION DATED
18.6.2018 SUBMITTED BY THE PETITIONER FOR
NOC.
Exhibit P7 THE TRUE COPY OF THE REPORT NUMBERED AS
455/18 DATED 24.7.2018 ALONG WITH THE SKETCH
SUBMITTED BY VILLAGE OFFICER, ELAPPARA.
Exhibit P8 THE TRUE COPY OF THE REPORT DATED 15.6.2019
ALONG WITH ALL THE RELEVANT DOCUMENTS HE
RELIED ON FOR PREPARING THE REPORT AS WELL
AS THE SURVEY MAP SUBMITTED BY TALUK
SURVEYOR.
Exhibit P9 THE TRUE COPY OF THE COMMUNICATION DATED
8.8.2019 ISSUED BY THE TAHSILDAR (LR),
PEERUMEDE TALUK TO THE DISTRICT COLLECTOR
RECOMMENDING FURTHER ACTION ON THE
APPLICATION SUBMITTED BY THE PETITIONER.
Exhibit P10 THE TRUE COPY OF THE JUDGMENT DATED
W.P. (C) 16231 & 16238 of 2021 :36:
24.1.2020 IN WPC NO.20464 OF 2019.
Exhibit P11 THE TRUE COPY OF THE COMMUNICATION DATED
2.6.2020 SENT BY THE DISTRICT COLLECTOR,
IDUKKI TO THE GEOLOGIST, IDUKKI.
Exhibit P12 THE TRUE COPY OF THE LETTER DATED 16.6.2020
ISSUED BY THE SENIOR GEOLOGIST TO THE
DISTRICT COLLECTOR, RECOMMENDING ISSUANCE OF
NOC.
Exhibit P13 THE TRUE COPY OF THE G.O.(MS)NO.28/2021/RD
DATED 28.1.2021 ISSUED BY THE REVENUE
DEPARTMENT.
Exhibit P14 THE TRUE COPY OF THE REPRESENTATION DATED
5.7.2021 SUBMITTED BY THE PETITIONER.
Exhibit P15 TRUE COPY OF THE APPLICATION DATED
21/06/2022 SUBMITTED UNDER R.T.I ACT, 2005
Exhibit P16 TRUE COPY OF THE ANSWERS FURNISHED IN
RESPONSE TO EXHIBIT-P15 FROM THE PUBLIC
INFORMATION OFFICER ATTACHED TO THE
COLLECTORATE IDUKKY AS PER LETTER
NO.DCIDK/695/2022-E9 DATED 13/07/2022.
Exhibit P17 THE TRUE COPY OF THE JUDGMENT DATED
22.3.2022 IN W.P.(C) NO.29498 OF 2021.
RESPONDENTS' EXHIBITS
EXHIBIT R8(A) A TRUE COPY OF THE LETTER DATED 20.03.2019
ISSUED TO THE DISTRICT COLLECTOR,IDUKKI
EXHIBIT R8(B) A TRUE COPY OF LETTER DATED 18.01.2020
ISSUED TO THE LAND REVENUE
COMMISSIONER,THIRUVANANTHAPURAM
W.P. (C) 16231 & 16238 of 2021 :37:
APPENDIX OF WP(C) 16231/2021
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE APPLICATION DATED
18.6.2018 SUBMITTED BY THE PETITIONER.
Exhibit P2 THE TRUE COPY OF THE REPORT NUMBERED AS
456/18 DATED 24.7.2018 SUBMITTED BY THE
VILLAGE OFFICER.
Exhibit P3 THE TRUE COPY OF THE REPORT DATED 7.8.2018
ALONG WITH ALL THE RELEVANT DOCUMENTS HE
RELIED ON FOR PREPARING THE REPORT AS WELL
AS THE SURVEY MAP.
Exhibit P4 THE TRUE COPY OF THE COMMUNICATION DATED
30.3.2019 ISSUED BY THE TAHSILDAR (LR)
PEERUMEDE TALUK TO THE DISTRICT COLLECTOR
RECOMMENDING FURTHER ACTION ON THE
APPLICATION SUBMITTED BY THE PETITIONER.
Exhibit P5 THE TRUE COPY OF THE JUDGMENT DATED
24.1.2020 IN WPC NO 20464 OF 2019.
Exhibit P6 THE TRUE COPY OF THE COMMUNICATION DATED
5.6.2020 SENT BY THE DISTRICT COLLECTOR,
IDUKKI TO THE GEOLOGIST, IDUKKI.
Exhibit P7 THE TRUE COPY OF THE LETTER DATED 16.6.2020
ISSUED BY THE SENIOR GEOLOGIST TO THE
DISTRICT COLLECTOR, RECOMMENDING ISSUANCE OF
NOC.
Exhibit P8 THE TRUE COPY OF THE GO(MS) NO 28/2021/RD
DATED 28.1.2021 ISSUED BY THE REVENUE
DEPARTMENT
Exhibit P9 THE TRUE COPY OF THE REPRESENTATION DATED
5.9.2021 SUBMITTED BY THE PETITIONER.
Exhibit P10 THE TRUE COPY OF THE APPLICATION DATED
21.6.2022 SUBMITTED UNDER RIGHT TO
INFORMATION ACT, 2005.
Exhibit P11 THE TRUE COPY OF THE ANSWERS FURNISHED IN
W.P. (C) 16231 & 16238 of 2021 :38:
RESPONSE TO EXHIBIT P15 FROM THE PUBLIC
INFORMATION OFFICER ATTACHED TO THE
COLLECTORATE IDUKY AS PER THE LETTER
NO.DCIDK/695/2022-E9 DATED 13.7.2022.
Exhibit P12 TRUE COPY OF THE JUDGMENT DATED 22.03.2022
IN W.P.(C)NO.29498 OF 2021.
RESPONDENTS' EXHIBITS
EXHIBIT R8(A) A TRUE COPY OF THE LETTER DATED 20.03.2019
ISSUED TO THE DISTRICT COLLECTOR,IDUKKI
EXHIBIT R8(B) A TRUE COPY OF LETTER DATED 18.01.2020
ISSUED TO THE LAND REVENUE
COMMISSIONER,THIRUVANANTHAPURAM
