IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 WA.No. 5 of 2008 ----------------------------- AGAINST THE JUDGEMENT IN WPC.20819/2007 Dated 12/11/2007 APPELLANT: PETITIONER IN THE WPC: -------------------------------------------------------- K.S.SANOJ, S/O. SATHYAVAN, KALAPPURACKAL HOUSE, EDAVOOR P.O., CHERANALLOOR, ERNAKULAM DISTRICT. BY ADV. SRI.P.A.NOOR MUHAMMED SRI.C.K.PRASAD RESPONDENT: RESPONDENT IN THE WPC: -------------------------------------------------------------- THE GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION, ERNAKULAM. BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------------------ W.A.No.5 of 2008 ------------------------------------------------------- Dated, this the 2nd day of January, 2008 JUDGMENT K.M.Joseph, J. The petitioner in the writ petition is the appellant herein. He has approached this Court for quashing Ext.P7 and also for a writ of mandamus or any other appropriate writ, order or direction commanding the respondent to issue prescribed form of application for grant of Dealer's Licence to the petitioner and grant him the licence forthwith as requested in Ext.P6. (2). According to the appellant, he has been granted dealer's licence under Rule 48-C of the Kerala Minor Mineral Concession Rules 1967 to sell, stock and exhibit for sale sand at the place specified in the licence as per Ext.P1. Ext.P1 was issued on 5-4-2006. The licence was valid upto 31-03-2007. It is submitted that the respondent issued a stereo type notice Ext.P2 dated 18-1-2007 to the the petitioner and all such dealers in Ernakulam District stating that the entire stock of sand should be sold out before 31-3-2007 and that after 31-3-2007 no P Form would be issued. When the appellant contacted the respondent for renewal of his licence, the respondent refused to entertain his application. According to him, when a similarly situated person approached this Court this Court passed Ext.P4 interim order and later this Court confirmed the same and disposed of the writ W.A.No.5/08 -2- petition vide Ext.P4(a) judgment. When the petitioner approached this Court against the refusal of his application for renewal of licence, this Court dismissed his writ petition. Petitioner filed Ext.P6 application dated 22-6-2007 seeking grant of a fresh Dealer's licence to sell, stock and exhibit for sale of sand. He also requested for issuance of prescribed application form and chalan for remittance of fee. To this he has been served with Ext.P7 dated 4- 7-2007 wherein it is stated as follows: “As per the reference cited, the application submitted by you in this office for granting Dealer's Licence at the place comprised in survey No.142/7-1 of the Koovappady Village in Kunnathunad Taluk in Ernakulam District was not in correct form (The application for Dealer's Licence is to be submitted in Form K). However, permission to mine, stock and sell sand has been granted to the Koovappady and Okkal Panchayaths near the place of your application. Licence for sand cannot be granted at more places. Therefore, it is informed that as per 48D-IV, V of the Kerala Minor Mineral Concession Rules 1967, Dealer's Licence cannot be granted to you.” (3). The challenge of the petitioner against Ext.P7 became unsuccessful before the learned Single Judge who accepted the version of the respondents that the refusal to grant licence to the petitioner was on account of considering the availability of river sand and the number of W.A.No.5/08 -3- licensesees that are required. The contention of the petitioner was that it is a fundamental right guaranteed under Article 19 (1) (g) of the Constitution. The learned Single Judge stated that it is always open to the Government to decide not to increase the number of licensees as according to it the existing licensees are sufficient to meet the requirements. (4). Heard Sri.P.A.Noor Muhammed, learned counsel appearing for the appellant and also the learned Government Pleader for the respondent. The learned counsel for the appellant would contend that the appellant has got a fundamental right guaranteed under Article 19 (1) (g) of the Constitution and that it can be taken away by virtue of reasonable restriction under Article 19 (6) of the Constitution. He would submit that Ext.P1 would show that he was granted licence, and he was carrying on business. When similarly situated persons approached this Court, they had been issued with orders by this Court. Learned counsel for the appellant would further submit that the appellant is conscious of the shortage of river sand, but the licence which the appellant is seeking is under Rule 48-C of the Kerala Minor Mineral Concession Rules which provides for right to sell and stock river sand. He contends that the appellant would be in a position to procure sand from other areas where the sand is available in abundance and therefore, reasons stated for denying licence that there is shortage of sand cannot hold good. (5). The learned Government Pleader would point out that the W.A.No.5/08 -4- stand of the Government is reflected in the counter affidavit wherein inter alia it is stated as follows: “4. It is respectfully submitted that the order Ext.P7 issued by the Geologist is legally sustainable and reasonable. Already local bodies/Panchayats of the area have been given permission to carry out sand mining and selling business and good business is being done by the Panchayats. Further permission to individuals will lead to unhealthy competition in that area. Hence the application submitted by the petitioner for the grant of Dealers Licence to stock and sell the sand was rejected in accordance with Rule 48 D (IV) and (V) of Kerala Minor Mineral Concession Rules, 1967. It is submitted that Panchayats/Local Self Governments are operating sand business under Sand Act, 2001 and not under Dealers Licence issued under KMMC Rules. 5. Further, it is most humbly submitted that sand is a very limited natural resource and it is true that the demand for the same is very high. The Dealers licence is granted for the purpose of stocking and selling the mineral and hence permission is granted depending upon the availability of the source. I may submit that granting more licences to individuals in places where the Panchayats are actively involved in the same business will lead to unhealthy competition and black marketing and in turn will result in the increase in price of the mineral. Hence it is submitted W.A.No.5/08 -5- that there is no necessity for sand to be stocked and sold in places where the Panchayats have been given permission under Sand Act.” (6). Learned counsel for the appellant then would point out that it is settled law that it is not open for the authorities to support an order passed in exercise of the statutory power with reasons as pointed out in the counter affidavit filed before the court. The order has to be supported by reasons as it stands in the order and it cannot be supplemented with reasons stated in the counter affidavit. The learned counsel also relied on the decision in Mahinder Singh Vs. Chief Election Commissioner (AIR 1978 SC 851). (7). From Ext.P7 it is clear that, what is stated by the authorities is that the application is not in the correct form. No doubt it is also stated that the licence has been granted to panchayats near the place of the petitioner and licence cannot be granted at more places. In the nature of Ext.P7 order, the matter requires to be reconsidered. In such circumstances, the following order is passed: ORDER (i). The respondent is directed to issue to the appellant the application form as requested by him in Ext.P6 within a period of one month from the date of receipt of a copy of this judgment. (ii). If the petitioner submits application before the respondent, W.A.No.5/08 -6- a decision in accordance with law will be taken within six weeks from the date of receipt of the application. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE MS