IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 WP(C).No. 22938 of 2011(N) -------------------------- PETITIONER(S): --------------- 1. KESAVAN MOOSSATHU, S/O.KUMARAN MOOSSATHU, KIZHAKKEPPATT HOUSE, P.O.OTHUKKUNGAL, MALAPPURAM. 2. SAROJINI ANTHRARJANAM, W/O.KESAVAN MOOSSATHU, KIZHAKKEPPATT HOUSE, P.O.OTHUKKUNGAL, MALAPPURAM. 3. SAVITHRI @ SUJA, D/O.KESAVAN MOOSSATHU, KIZHAKKEPPATT HOUSE, P.O.OTHUKKUNGAL, MALAPPURAM. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS JOINT SECRETARY, INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695039. 2. THE GEOLOGIST, MINING & GEOLOGY DEPARTMENT, MANJERI, MALAPPURAM, PIN-676121. 3. MR.HAKKIM, D/O.ALAVI, KURUNIAN HOUSE, MATTATHOOR, OTHUKKUNGAL, MALAPPURAM, PIN-676528. SR. GOVERNMENT PLEADER SMT.M.J.RAJASHREE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.22938/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE CONSENT. P2 COPY OF THE MINING PERMIT DT 22.11.06. P3 COPY OF THE MINING PERMIT DT 12.2.07. P4 COPY OF THE LETTER DT 15.12.07. P5 COPY OF THE LETTER DT 28.4.08. P6 COPY OF THE DEMAND NOTICE DT 11.6.09. P7 COPY OF THE ORDER DT 24.11.08. P7(A) COPY OF THE JUDGMENT DT 7.8.09. P7(B) COPY OF THE APPEAL. P8 COPY OF THE ORDER DT 27.10.10. P9 COPY OF THE LETTER OF GEOLOGIST. P10 COPY OF THE APPLICATION BEFORE R1. P11 COPY OF THE ORDER DT 17.7.11. // True Copy // P.A. To Judge ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` W.P.(C) No. 22938 of 2011 N ``````````````````````````````````````````````````````````` Dated this the 31st day of August, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Exts.P8 and P11 orders are under challenge. These orders were passed by the first respondent, considering a stay application filed by the petitioners along with Ext.P7 appeal filed under Rule 49(1) of the Kerala Minor Mineral Concession Rules, 1967. By the impugned orders, stay was granted on condition that the petitioners remit 50% of the assessed amount. 2. Pleadings in the writ petition show that the petitioners are the owners of 50 cents of land in Othukkungal village of Malappuram district. Ext.P1 is the document executed by the petitioners in favour of the third respondent permitting him to quarry laterite from 25 cents of their property. On the basis of Ext.P1, the third respondent obtained permit and conducted quarrying. In November, 2007, an inspection was held and apparently it was found W.P.(C) No.22938/2011 : 2 : that excess quantity was quarried from the property in question. Based on the above, it appears that, when royalty was demanded, the third respondent did not pay the same and, therefore, Exts.P4 and P5 were issued, calling upon the petitioners to pay the royalty amount. It is aggrieved by the above, that the appeal was filed and the impugned order of stay was passed. 3. Reading of the impugned orders does not show that the first respondent while requiring the petitioners to remit 50% of the amount due, considered any of their contentions raised by the petitioners. Therefore, counsel is justified in contending that the order reflects total non application of mind. That apart, on the facts, it is seen that the permit holder was the third respondent and the reason for demanding royalty from the petitioners is that the permit holder did not make payment. The specific case of the petitioners that, under the Rules, the liability to pay the royalty is that of the permit holder and if that be so, the petitioners W.P.(C) No.22938/2011 : 3 : being the land owners, could not have been made liable. Thus, not only that the impugned orders disclose total non application of mind, but also that the petitioners have made out a strong prima facie case. 4. In such circumstances, Exts.P8 and P11 will stand set aside and the first respondent is directed to dispose of Ext.P7 appeal filed by the petitioners with notice to them, as expeditiously as possible. It is directed that, in the meanwhile, further proceedings for recovery of the amount as demanded from the petitioners as per Exts.P4 and P5 will stand stayed. Writ petition is disposed of as above. Sd/- (ANTONY DOMINIC, JUDGE) aks/31/08 // True Copy // P.A. To Judge