IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 W.A.No. 1908 of 2009 AGAINST THE JUDGEMENT/ORDER IN WPC.9605/2008 Dated 13/08/2009 .................... APPELLANTS / RESPONDENTS 3 & 4 IN WPC. 1. GURUDEVAN METAL CRUSHERS, KANNIMANGALAM, NADUVATTOM PO, PIN-683 574 REP.BY ITS PROPRIETOR, MA.JANARDHANAN. 2. SANTHA JANARDANAN, W/O.JANARDHANAN, GURUDEVAN METAL CRUSHERS, KANNIMANGALAM, NADUVATTOM PO,683 574. BY ADV. SRI.M.M.ABDUL AZIZ, SENIOR ADVOCATE SRI.JYOTHISH.J.KALLINGAL RESPONDENTS / PETITIONERS, RESPONDENTS 1,2,5 & 6 IN WPC. 1. K.R.RAMANAN, S/O.RAMAN, AGED 55 YEARS, KUNNEVELIYIL HOUSE, KANNIMANGALAM, NADUVATTOM PO, 683 574 , ERNAKULAM DIST. 2. ILLITHODU-MULAMKUZHI GRAMASAMRAKSHANA SAMITHI, REP.BY ITS SECRETARY, FRANCIS NJALIYAN, MALAYATTOR PO, ILLITHODU, KALADY VIA. 3. KERALA STATE POLLUTION CONTROLLOL BOARD, REP.BY ITS ENVIRONMENTAL ENGINEER, OANAMPILLY NAGAR, ERNAKULAM. 4. THE DISTRICT GEOLOGIST, KAKKANAD, ERNAKULAM. 5. THE TAHSILDAR, ALUVA TALUK, ALUVA. 6. MALAYATTOOR-NEESWARAM GRAMA PANCHAYATH, REP.BY ITS SECRETARY BY SENIOR ADV.SRI.K.RAMKUMAR FOR R1 AND R2 ADV.SRI.M.K.CHANDRAMOHANDAS FOR R3 GOVERNMENT PLEADER SMT.MEERA FOR R4 AND R5 SRI.KURIAKOSE G.THEKKEL FOR R6 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.BANNURMATH, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.1908 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August 2009 JUDGMENT S.R.BANNURMATH, C.J. Challenging the judgment of the learned Single Judge dated 13/8/09 in W.P.(C)No.9605/08 dismissing the writ petition as well as issuing certain further directions, the present appeal is filed. 2. Prayers of the writ petitioner/appellant in the writ petition are as follows: a) to issue a writ of mandamus or any other writ, order or direction commanding respondents 1 and 2 to immediately stop the running of the illegal quarry by the respondents 3 and 4 by taking such steps as are required; b) to declare that the running of the quarry within the Malayattoor - Neeleeswaram Grama Panchayath close to the residence of the 1st petitioner is absolutely unauthorized, illegal and violative of Article 21 of the Constitution of India; c) to issue a writ of mandamus commanding 5th respondent Tahsildar, Aluva, to immediately cancel the patta issued in respect of the lands as the conditions of assignment are admittedly violated by taking such actions as are required in law forthwith; d) to issue directions to respondents 3 and 4 not to run the quarry without a valid licence and in violation of the provisions for assignment of land, pending disposal of the writ petition; d) to issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case. W.A.No.1908 OF 2009 :: 2 :: 3. Aggrieved by the judgment passed by the learned Single Judge, dismissing the petition as devoid of merits, but with certain directions, the petitioner/appellant is before this Court. According to the petitioner/appellant, he is mainly aggrieved by the portion of the order whereunder the learned Single Judge ordered to cancel the assignment and to resume the land and recover the value of the granite removed by the appellants finding that land assigned for other purpose is used for quarrying. It is submitted that the Government under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and the rules thereunder has issued permits or license for carrying on operations of mining. In view of Clause 13 of the assignment order, mines and quarries subjacent to the land assigned are reserved for Government and left unaffected by the assignment which saves the right of the Government to carry on mining operation and in turn the right of the assignee is also protected. 4. This argument, in our view, is putting cart before the horse. The assigned land has been assigned to the predecessor of the appellants under the then prevailing assignment rules specifically for the purpose of rubber cultivation. As per Clause 5 of the Order of Assignment, the registry is liable to cancel the assignment for contravention of any of the Clauses including the use of the land W.A.No.1908 OF 2009 :: 3 :: assigned. As this was a specific assignment for specific purpose, in our view neither the assignee nor the appellants can use the land or suffer it to be used except for the purposes for which it is assigned (Clause 10). 5. Appellants have ten licenses for quarrying operation and that does not mean that they can carry it in the assigned land if the assignment is for any specific purpose. Even the Clause 13 of the order of assignment will not come to the rescue of the appellant, since under that Clause it is the right of the Government in mines and quarries subjacent to the said land are reserved and are in no way affected by the grant. That does not give license to the appellant/petitioner to carry on the mining operation contrary to the purpose for which use land has been assigned. It is clear that there is violation of the conditions of assignment as well as the rules under which the assignment has been granted. The learned Single Judge was justified in holding that as the appellants have controverted the condition of use and as such the assignment is liable to be cancelled. We do not find any good reason to interfere with the same. However, it is noticed from the impugned order that apart from directing respondent No.5 to take immediate steps to cancel the patta, the learned Single Judge has proceeded further in directing recovery of value of the granite so far quarried by the appellants as W.A.No.1908 OF 2009 :: 4 :: according to him deemed to be illegal operation. This, in our view, is not correct. Right or wrong the appellants have obtained quarrying license and have been paying royalties for the extracted minerals and even Kerala Minor and Mineral Concession Rules, 1967 does not permit to such recovery. The learned Single Judge was not justified in ordering so. Hence, we allow the appeal in part setting aside the direction of the learned Single Judge for recovering the value of granite quarried by the appellants and sustain the other portion and directions issued by him. At this stage, it is submitted that the petitioner/appellants apprehend that the permit of quarrying would be affected by the order in respect of the other lands. We make it clear that there cannot be such a view taken by the authorities as the violation and cancellation of patta is confined to particular land. With these observations and modification, writ appeal stands disposed of. (S.R.BANNURMATH) CHIEF JUSTICE (A.K.BASHEER) JUDGE jes