IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 WP(C).No. 5343 of 2010(P) ------------------------- PETITIONER(S): --------------------- 1. SATHEESH KUMAR, S/O.KUNJUKRISHNA PILLAI, AGED 45, SATHKALA, TAGORE ROAD, THIRUMALA.P.O, THIRUVANANTHAPURAM. 2. MOHANAN, S/O.DASAN, SHIBU BHAVAN, AGED 48, TAGORE ROAD, THIRUMALA, TRIVANDRUM. BY ADV. SRI.J.S.AJITHKUMAR RESPONDENT(S): ------------------------ 1. DEPUTY TAHSILDAR (REVENUE RECOVERY), THIRUVANANTHAPURAM. 2. THE GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, DISTRICT OFFICE, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. 4. JOINT SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. (APPELLANT AUTHORITY). R1 TO R4 BY GOVERNMENT PLEADER SRI. A.J. VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 5343 of 2010(P) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF SALE DEED NO. 3238/06 DATED 31-06-2006. EXT.P2 : COPY OF THE NOTICE DATED 14-07-2009 TO THE SENT BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. EXT.P3 : COPY OF THE NOTICE DATED 14-07-2009 TO THE SENT BY THE 2ND RESPONDENT TO THE 2ND PETITIONER. EXT.P4 : COPY OF THE REPLY NOTICE OF PETITIONERS TO THE 2ND RESPONDENT DATED 03-08-2009. EXT.P5 : COPY OF THE NOTICE DATED 14-09-2009 TO THE 1ST PETITIONER. EXT.P6 : COPY OF THE NOTICE DATED 14-09-2009 TO THE 2ND PETITIONER. EXT.P7 : COPY OF THE REPLY NOTICE OF PETITIONERS DATED NIL TO THE 1ST RESPONDENT. EXT.P8 : COPY OF THE INTIMATION OF 2ND RESPONDENT TO THE VILLAGE OFFICER, THIRUMALA DATED 30-05-2005. EXT.P9 : COPY OF COMMUNICATION DATED 03-06-2005 BY THE 2ND RESPONDENT TO THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM. EXT.P10 : COPY OF THE PROCEEDINGS DATED 20-12-2004 OF R.D.O., THIRUVANANTHAPURAM. EXT.P11 : COPY OF THE COMMUNICATION DATED 20-12-2004 OF R.D.O., TVM, TO THE VILLAGE OFFICER, THIRUMALA. EXT.P12 : COPY OF THE COMMUNICATION DATED 20-12-2004 OF R.D.O., TVM, TO THE S.I. OF POLICE, POOJAPPURA. EXT.P13 : COPY OF THE COUNTER AFFIDAVIT IN W.P.(C) NO. 11677/07 OF THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. EXT.P14 : COPY OF THE FINAL REPORT IN CRIME NO. 174/08 ON THE FILE OF J.F.C.M. COURT, THIRUVANANTHAPURAM. ...3/- WP(C).No. 5343 of 2010(P) -3- EXT.P15 : COPY OF THE APPEAL FILED BY THE PETITIONERS BEFORE THE 4TH RESPONDENT DATED 03-09-2009. EXT.P16 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO. 26926/09 DATED 07-10-2009. EXT.P17 : COPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE 4TH RESPONDENT DATED 05-01-2010. EXT.P18 : COPY OF THE ORDER DATED 06-01-2010 SERVED TO THE PETITIONERS ON 27-01-2010 OF THE 4TH RESPONDENT. EXT.P19 : COPY OF THE ORDER NO. M1-9463/09 DATED 10-02-2010 OF THE REVENUE RECOVERY OFFICER, THIRUVANANTHAPURAM. EXT.P20 : COPY OF THE ORDER NO. M1-9464/09 DATED 10-02-2010 OF THE REVENUE RECOVERY OFFICER, THIRUVANANTHAPURAM. EXT.P21 : COPY OF RECEIPT NO. 1792907 ISSUED BY THE VILLAGE OFFICER DATED 06-03-2010. EXT.P22 : COPY OF RECEIPT NO. 1792908 ISSUED BY THE VILLAGE OFFICER DATED 06-03-2010. RESPONDENT'S EXHIBITS: EXT.R2(a) : COPY OF THE NOTICE NO. AR NO. 610/DOT/EM/07 DATED 28.07.2009, SENT TO THE 1ST PETITIONER. EXT.R2(b) : COPY OF THE NOTICE NO. AR NO. 610/DOT/EM/07 DATED 28.07.2009, SENT TO THE 2ND PETITIONER. //TRUE COPY// P.S. TO JUDGE Mn P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 5343 OF 2010 ......................................................................... Dated this the 8th October , 2010 J U D G M E N T The petitioners are challenging the correctness and sustainability of Ext. P18 order passed by the Government with regard to fixation of liability to be satisfied by the petitioners in respect of excavation of sand made by the petitioners unauthorisedly from their land covered by Ext. P1 sale deed. 2. The sequence of events in the Writ Petition shows that the petitioners purchased an extent of 12 cents of land jointly as per Ext. P1 sale deed dated 31.08.2006. It is contended that the property was water logged being situated near 'Karamana river' and it was purchased for starting a fish farm and also to run a hatchery. However, to the utter shock and surprise of the petitioners, they were served with Exts.P2 and P3 notices by the second respondent, pointing out that they had unauthorisedly excavated sand to an extent of 1337.6 W.P.(C) No. 5343 OF 2010 2 metric tonnes and demanded a sum of Rs.2,80,896/-. Since the property covered by Ext. P1 sale deed was jointly owned by the petitioners, two separate notices were issued to both of them. In the said circumstance, the petitioners preferred Ext.P4 joint explanation stating the actual facts and circumstances , which however, were simply given a go-bye and the concerned respondents proceeded with Exts. P5 and P6 recovery notices demanding a sum of Rs. 4,56,456/- plus interest and collection charges to be satisfied by 'each' of the petitioners, which in turn was subjected to challenge by filing W.P.(C) 26926 of 2009. After hearing both the sides, the said Writ Petition was disposed of as per Ext. P16 judgment, directing the respondents to consider the appeal filed by the petitioners, leading to Ext.P18 order passed by the 4th respondent dismissing the appeal and sustaining the demand, which forms the subject matter of challenge in this Writ Petition. 3. The second respondent has filed a counter affidavit seeking to sustain Ext.P18, also producing Exs.R2(a) and (b). Some additional documents have been produced by the W.P.(C) No. 5343 OF 2010 3 petitioners along with I.A.No.3234 of 2010 and I.A.No. 3543 of 2010, seeking to mark the same as additional exhibits. 4. The learned Counsel for the petitioners submits that the matter was admitted by this Court granting interim stay on 22.02.2010 directing the petitioners to deposit a sum of Rs. Two lakhs each, which is stated as complied with. However, in spite of extension of stay on the subsequent occasions, the same happened to be vacated later, when the matter was considered along with another Writ Petition, as per the order dated 22.03.2010, which made the petitioners to file W.A.No. 565 of 2010. The said Writ Appeal was disposed of as per the judgment dated 07.04.2010, extending the stay by three months and directing the Writ Petition, to be listed and finalised accordingly. 5. The learned Counsel for the petitioners submits that, there is absolutely no discussion as to the actual facts and events in Ext.P18 order passed by the 4th respondent ; more so, when specific grounds of challenge were raised by the petitioners in Ext. P15 memorandum of appeal. Referring to the contents of W.P.(C) No. 5343 OF 2010 4 Ext. P1 sale deed, the learned Counsel submits that the property was actually purchased by the petitioners only on 31.08.2006 and this being the position, the petitioners cannot be blamed in respect of any course of events pursued by the previous owners or the persons under them with regard to excavation of sand. Reliance is also sought to be placed on Exts. P8 to 12, which are various communications issued by the various departmental authorities . 6. Ext.P8 is the communication dated 30.05.2005 sent by the second respondent Geologist to the Village Officer, Thirumala Village as to the sand mining activity, which refers to such course pursued by 'Pushkaran Nair' and 'Ramachandran', who are owners of the nearby property, while no reference is made to the petitioners therein, more so when the petitioners were became owners of the property only in August 2006. Similarly, Ext. P9 is a letter sent by the second respondent Geologist to the Commissioner of police, Thiruvananthapuram, which is dated 03.06.2005, i.e., prior to the purchase of the property by the petitioners in 2006. Ext.P10 is a copy of the W.P.(C) No. 5343 OF 2010 5 proceedings of the RDO dated 20.12.2004 referring to the illegal sand mining pursued by the aforesaid Pushkaran Nair, also making a mention that the illegal sand mining was pursued therein for the last three years. Ext.P11 is the communication dated 20.12.2004 sent by the RDO to the S.I. Of police, Poojappura and Ext. P12 is a similar letter dated 20.12.2004, sent by the RDO to the Village Officer, Thirumala in connection with the illegal sand mining. Of these proceedings, Exts. P8 to P12 are dated much prior to the date of conveyance of the property to the petitioners vide Ext. P1. The learned Counsel submits that, in none of the above the documents, the names of the petitioners have been referred to in any of the capacity, either as the owners or as the licensee or agent acting under anybody. The learned Counsel further submits that Ext. P14 charge sheet submitted by the Police in respect of the offences committed by the culprits under different heads clearly shows that the aforesaid Pushkaran Nair is the accused and this person is behind all these activities. According to the petitioners, no proper action has been pursued against the actual persons for W.P.(C) No. 5343 OF 2010 6 realisation of due amounts. 7. The learned Government Pleader appearing for the respondents submits that the property of the petitioners is actually situated in Sy. No. 1415/2 and it is discernible from Ext.P1 sale deed itself, that the property is a pucca 'dry land' with trees and coconut palms. The description of the property does never say that it is a water logged land and this being the position, the contention of the petitioners cannot be swallowed with a pinch of salt, submits the learned Government Pleader. It is also submitted that the property purchased by the petitioners at the time of conveyance was a pucca 'dry land' and excavation was being pursued by the petitioners after the purchase, which was taken cognizance of by the concerned respondents, followed by such other appropriate action . It is further stated by the learned Government pleader that the extent of sand mining effected by the petitioners was quantified in accordance with the relevant norms and it was accordingly, that the extent of liability was fixed, which is not assailable under any circumstance. Referring to the survey number, the learned W.P.(C) No. 5343 OF 2010 7 Government Pleader submits that the property of the petitioners and the property of the aforesaid Pushkakaran Nair and Ramachandran (against whom Exts.P8 to P12 proceedings were initiated), are different and that appropriate steps were pursued for realisation of Rs. 15,13,512/- lakhs from the latter and they have already satisfied the said amount, as stated in the counter affidavit. 8. But the fact remains, whether the activity being pursued by the aforesaid persons as referred to in Exts. P8 to P12 were in respect of their property alone or also inclusive of the property purchased by the petitioners vide Ext.P1 situated in Sy.No.1415/2, is not discernible from the materials on record including the counter affidavit; Exts.P8 to P12 or even from Ex.P18 order passed by the appellate authority. On the other hand, the reference made in Ext. P14 charge sheet filed by the Police, wherein the sole accused arrayed is Pushkaran Nair and the illegal sand mining was reported with specific reference to the property covered by 'Survey Nos.1412, 1414 and 1415/2'. This shows that the accused therein, Pushkaran Nair was sought W.P.(C) No. 5343 OF 2010 8 to be booked in respect of the offence, also with reference to Sy. No.1415 which in fact is the Sy. Number of the property purchased by the petitioners as per Ext.P1 sale deed. This Court cannot presume whether the contents of Ext. P14 are correct or not, which in fact is a matter to be looked into and finalised by the concerned authorities with specific reference to the materials on record. Since there is absolutely no discussion in Ext. P18 order passed by the appellate authority on these vital aspects, i.e. with reference to survey number, the documents produced by the petitioners as Exts. P8 to P12 issued in respect of illegal sand mining in the area prior to the date of purchase of the property by the petitioners and the referene made to Survey No. of the property covered by Ext.P1 in Ext.P14 charge sheet, which is prepared much prior to issuance of Exts.P2 and P3, the matter ought to have been dealt with by the appellate authority more meticulously; more so, when it was so directed by this Court as per Ext. P16 judgment . It appears that the matter has been dealt with in a casual manner, which cannot but be deprecated . W.P.(C) No. 5343 OF 2010 9 9. In the above circumstance, this Court finds that the issue requires to be re-considered by the 4th respondent with specific refernece to the actual facts and figures, before proceeding against the petitioners any further. Accordingly, Ext.P18 is set aside and the 4th resopondent is directed to re- consider Ext.P15 appeal and pass a speaking order, with reference to the above facts and figures, of course, after giving an opportunity of hearing to all concerned including the petitioners; which exercise shall be pursued and finalised as expeditiously as possible at any rate within 'three months' from the date of receipt of a copy of this judgment. The petitioners shall produce a copy of this judgment along with a full text of the entire proceedings including the documents produced along with the original Writ Petition, the additional documents produced and a copy of the judgment in W.A.No. 565 of 2010, before the 4th respondent within two weeks from the date of receipt of a copy of this judgment. In view of satisfaction of a porton of the alleged extent of liability by the petitioners pursuant to the interim order passed by this Court, further coercive steps shall W.P.(C) No. 5343 OF 2010 10 be kept in abeyance till the proceedings are finalised as above. The Writ Petition is disposed of accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk