IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 OP.No. 14291 of 1999(B) ----------------------- PETITIONER(S): --------------- KARAKKADAN ABDULLA, S/O.AHAMMEDKUTTY, KARAKKADAN HOUSE, NELLIKUTTU P.O., MANJERI. BY ADV. SRI.SHIRAZ ABDULLA SRI.IMTHIYAZ AHAMED RESPONDENT(S): --------------- 1. THE DISTRICT COLLECTOR, MALAPPURAM. 2. THE DIRECTOR OF MINING AND GEOLOGY, TRIVANDRUM. 3. THE TAHSILDAR, TALUK OFFICE, ERANADU, MANJERI. GOVT. PLEADER SHRI.M.A.ASIF THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/08/2010, ALONG WITH OP NO. 19030 OF 1999 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 14291/99 APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE PETITION DTD.2.9.97 BEFORE R2. P2. COPY OF THE PETITION DTD.2.9.97 BEFORE R1. P3. COPY OF THE ORDER OB R2 DTD.19.2.98. P4. COPY OF THE CERTIFICATE DTD.19.9.98. P5. COPY OF THE PETITION DTD.26.2.98 BEFORE R1. P6. COPY OF THE ORDER DTD.9.7.98 BY R1. P7. COPY OF THE REVIEW PETITION DTD.23.7.98. P8. COPY OF THE FIRST PAGE OF THE REGISTER. P9. COPY OF THE FIRST PAGE OF THE REGISTER. P10. COPY OF THE LAST PAGE OF THE REGISTER. P11. COPY OF THE LAST PAGE OF THE REGISTER. P12. COPY OF THE EXTRACT OF THE REGISTER. P13. -DO- P14. COPY OF THE ORDER BY R1 DTD.7.8.98. P15. COPY OF THE RECEIPT DTD.24.3.67. P16. -DO- 29.3.67. P17. -DO- 4.7.68. P18. -DO- 11.7.68. P19. -DO- 20.3.69. P20. -DO- 23.3.69. P21. COPY OF THE STOP MEMO DTD.7.8.99. P22. COPY OF THE JUDGMENT IN O.P.No.16305/98 OF THIS COURT. P23. COPY OF THE ORDER BY R1 DTD.2.3.99. RESPONDENT(S)'EXHIBITS R2A. COPY OF THE LOCATION MAP OF QUARYING SITE. R2B. COPY OF THE APPLICATION DTD.19.8.87. R2C. COPY OF THE NOTE FILE. R2D. COPY OF THE LETTER DTD.29.8.87 OF THE DISTRICT GEOLOGIST. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.Nos.14291 & 19030 of 1999 ================== Dated this the 2nd day of August, 2010 J U D G M E N T The petitioner applied for a quarrying lease in Government land. After completing the procedure in respect thereof, the petitioner was granted a lease for quarrying in 8 acres of land in Re.sy. No.465/PT of Payyanadu village. Permit to do quarrying was issued in 1987. The original lease was for 5.5 acres of land for 10 years upto 29.2.1998. Subsequently 2.5 acres was also added and permit in respect of the same was extended from time to time and lastly, by order dated 18.2.1998, the period of permit was extended upto 18.2.1998. While the petitioner was carrying on the quarrying on the basis of the said lease, CMC No.24/95 was filed before the Sub Divisional Magistrate, Perunthalmanna, under Section 133 of the Criminal Procedure Code, challenging the quarrying. The Sub Divisional Magistrate directed the petitioner to stop quarrying, pursuant to which, the petitioner stopped quarrying. Later on, on 20.12.1995, the Sub Divisional Magistrate confirmed the said order. The order of the Sub Divisional Magistrate was challenged in revision before the Sessions Court, Manjeri, as Crl.R.P.No.4/1996 and, on 30.8.1997, the Sessions Court allowed the revision setting aside the order of the Sub Divisional Magistrate. This Court confirmed the said order in Crl.R.P.No.857/1997. In the o.p.14291/99 & cc 2 meanwhile, the petitioner could not do any quarrying for the period from 14.8.1995 till 30.8.1997. Therefore, the petitioner filed a petition for extension of the period of lease for a period of 2 years and 16 days, during which time, the petitioner could not do any quarrying on account of the orders of the Sub Divisional Magistrate. By Ext.P2, the petitioner requested for extension of the period of the lease. By Ext.P3, the same was granted subject to the condition that the petitioner produces a no objection certificate from the 1st respondent. The 1st respondent, by Ext.P4, granted a no objection certificate for three months. The petitioner filed another petition, Ext.P5, for extension of the period of licence utpo 7.3.2000. By Ext.P6, the same was rejected on the ground that the petitioner quarried 25000 tonnes of granite in 10 years against the allowed quantity of 12000 tonnes. The petitioner filed a review petition on 23.7.1998. By Ext.P14 order dated 7.8.1998, that petition was rejected. By Ext.P22 judgment, this Court set aside that order and remanded the matter for fresh consideration. Pursuant thereto, by Ext.P23 order dated 2.3.1999, the application of the petitioner for no objection certificate for extension of lease for two years and 16 days was again rejected on a finding that the petitioner actually quarried about 1,54,928 MTs of granite and there was a direction in Ext.P23 order to take action to realise royalty for the excess quantity excavated. It is challenging that order O.P.No. o.p.14291/99 & cc 3 14291/1999 was filed. Later, another order was passed, which is produced as Ext.P23 in O.P.No.19030/1999, whereby the petitioner was directed to pay an amount of Rs.23,66,848/- towards royalty in respect of the allegedly additional quantity of granite stated to have been quarried by the petitioner in excess of the permitted quantity. Challenging that order, the petitioner filed O.P.No.19030/1999. Since these two original petitions relate to the same subject matter, they are being heard together and disposed of by this common judgment. 2. Presently, the petitioner's contention is that the calculation of the amounts in respect of granite quarried was made by taking measurements of the quarry and calculating the quantity quarried on the basis of the length, breadth and depth of the quarry, which cannot be the basis because the petitioner was not the only person who quarried from that property as is evident by the documents produced by the petitioner such as receipts etc. Prior to the grant of lease to the petitioner, some other persons had quarried the land, is the petitioner's contention. According to the petitioner, the land in question forms part of the excess land surrendered by a declarant under the ceiling provisions of the Kerala Land Reforms Act and the declarant had conducted quarrying in that property prior to surrender. The petitioner further contends that the petitioner has records to prove the quantity of granite quarried by him, which has been counter signed by o.p.14291/99 & cc 4 the concerned authority and in view of those documents, the respondents cannot now take a stand that the petitioner has quarried the quantity mentioned in the impugned order. The petitioner particularly relies Ext.P24 document obtained by him under the Right to Information Act, which according to the petitioner, is a communication from the Senior Geologist to the Sub Collector who considered the matter, which specifically states that he is not able to say whether the whole quantity of granite has been extracted by the lessessee during the lease period or not. 3. Counter affidavits have been filed by the respondents, wherein they take the stand that there was no quarrying in the land prior to grant of lease to the petitioner. They particularly rely on Exts.R2(b) and R2(c). They would, therefore, contend that the entire quantity of granite quarried from the property in question has been quarried by the petitioner himself and, therefore, the projected quantity based on the measurements of the quarries would be the actual quantity already quarried by the petitioner. 4. I have considered the rival contentions in detail. 5. The impugned orders do not disclose that the specific question raised by the petitioner has been considered by the lower authorities. The materials produced before me are not sufficient to enter into a definite conclusion in respect of the same either way. In o.p.14291/99 & cc 5 the above circumstances, I am of opinion that this question has to be considered by the District Collector again after affording an opportunity of being heard to the petitioner and allowing him to produce documents and evidences in support of the same. Accordingly, the impugned orders are quashed. The respondents are directed to reconsider the entire issue afresh after affording an opportunity of being heard to the petitioner, which shall include opportunity to adduce evidence in support of his contentions, if any. If documents are sought to be relied upon against the petitioner, the petitioner shall be given a copy of those documents. Fresh orders as directed above shall be passed as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The original petitions are disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.Nos.14291(B) & 19030 of 1999 ================== J U D G M E N T 2nd August, 2010