IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 WP(C).No. 9605 of 2008(R) ------------------------------------- PETITIONERS: --------------------- 1. K.R.RAMANAN, S/O.RAMAN, AGED 55 YEARS, RESIDING AT KUNNEVELIYIL HOUSE, KANNIMANGALAM, NADUVATTOM P.O., PIN-683 574, ERNAKULAM DISTRICT. 2. ILLITHODE-MULAMKUZHY GRAMA SAMRAKSHANA SAMITHI, REPRESENTED BY ITS SECRETARY, FRANCIS NJALIAN, MALAYATTOOR P.O., ILLITHODE, KALADY VIA. BY MR.K.RAMAKUMAR, SENIOR ADVOCATE ADVS. MR.K.ANAND, SMT.SMITHA GEORGE. RESPONDENTS: ------------------------ 1. KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS ENVIRONMENTAL ENGINEER, PANAMPILLY NAGAR, ERNAKULAM. 2. THE DISTRICT GEOLOGIST, KAKKANAD, ERNAKULAM. 3. GURUDEVAN METAL CRUSHERS, KANNIMANGALAM, NADUVATTOM P.O., PIN-683 524, REPRESENTED BY SRI.M.A.JANARDANAN. 4. SMT.SANTHA JANARDANAN, WIFE OF SRI.JANARDANAN, GURUDEVAN METAL CRUSHERS, KANNIMANGALAM, NADUVATTOM P.O., PIN-683 524. 5. THE TAHSILDAR, ALUVA TALUK, ALUVA. W.P.(C). NO.9605/2008-R: 6. MALAYATTOOR-NEELEESWARAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY. R1 BY MR. M.K. CHANDRAMOHAN DAS, S.C, R2 & R5 BY GOVT. PLEADER MR. DILIP MOHAN, R3 & R4 BY MR.M.M.ABDUL AZIZ, SENIOR ADVOCATE, MR.M.A.ABDUL HAKHIM, R6 BY ADVS. MR.C.J.JOY, MR.KURIAKOSE G.THEKKEL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.9605/2008-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: CP, ORDER OF ASSIGNMENT OF THE CONCERNED LAND IN FAVOUR OF ONE KOCHUVAREED FOR RUBBER CULTIVATION. EXT.P.2: COPY OF THE CERTIFICATE ISSUED BY THE PANCHAYAT THAT THE LICENCE IS GRANTED ONLY IN RESPECT OF SURVEY NO. 35/2. EXT.P.3: COPY OF THE SKETCH PREPARED BY THE VILLAGE OFFICER IN RESPECT OF THE LAND IN QUESTION. EXT.P.4: COPY OF THE RESOLUTION DTD. 30/10/06 PASSED BY THE MALAYATTOOR- NEELESWARAM GRAMA PANCHAYATH. EXT.P.5: COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER TO THE DEPARTMENT OF MINING AND GEOLOGY. EXT.P.6: COPY OF THE REPRESENTATION SUBMITTED BY THE P.2. TO THE SECRETARY OF THE MALAYATTOOR-NEELEESWARAM GRAMA PANCHAYATH. EXT.P.7: COPY OF THE REPRESENTATION SUBMITTED BY THE WIFE OF THE P.1. TO THE TAHSILDAR, ALUVA. EXT.P.8: COPY OF THE DIRECTION OF THE TAHSILDAR, ALUVA, PURSUANT TO EXT.P.7. EXT.P.9: PHOTOGRAPHS OF THE QUARRY SITE TAKEN BY THE POLICE. EXT.P.10: ORIGINAL PHOTOGRAPHS. EXT.P.11: COPY OF THE LETTER DT. 12/06/2008 RECEIVED BY THE PETITIONER FROM THE VILLAGE OFFICER, MALAYATTOOR. EXT.P.12: COPY OF THE DOCUMENT RECEIVED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT. EXT.P.13: COPY OF THE REPORT DT. 24/10/2008 BY THE DEPUTY DIRECTOR OF PANCHAYATS, ERNAKULAM ALONG WITH THE LETTER DT. 19/12/2008 BY THE SECRETARY OF THE MALAYATTOOR-NEELESWARAM GRAMA PANCHAYAT. RESPONDENTS' EXHIBITS & ANNEXURES: EXT.R3.A: COPY OF THE LICENSE NO. 47/2007-08 FROM THE MALAYATTOOR- NEELESWARAM GRAMAPANCHAYAT FOR STONE QUARRY VALID UP TO 31/03/2008. EXT.R3.B: COPY OF THE LICENSE NO. 46-2007-08 FROM THE MALAYATTOOR NEELESWARAM GRAMA PANCHAYAT FOR STONE CRUSHER VALID UP TO 31/03/2008. W.P.(C). NO.9605/2008-R: EXT.R3.C: COPY OF THE CONSENT FOR STONE QUARRY FROM THE POLLUTION CONTROL BOARD. EXT.R3.D: COPY OF THE PERMIT VALID UP TO 31/03/2008 FOR EXTRACTING STONE FROM STONE QUARRY FROM THE GEOLOGIST. EXT.R3.E: COPY OF THE EXPLOSIVE LICENSE NO. KL. 986/E OF SRI. P.V. JOSEPH, PARECKATTIL HOUSE, NEELESWARAM.P.O. EXT.R3.F: COPY OF THE CERTIFICATE OF REGISTRATION FROM SALES TAX DEPARTMENT FOR DEALING WITH THE STONES FROM STONE QUARRY. EXT.R3.G: COPY OF THE ORDER OF THE COMMERCIAL TAX OFFICER, ANGAMALI GRANTING PERMISSION TO PAY COMPOUNDING TAX. EXT.R3.H: COPY OF THE LICENSE NO. 169/1986-87 FOR STONE CRUSHER. EXT.R3.I: COPY OF THE SALE DEED NO. 1996/2004 OF THE SRO. SREEMOOLANAGARAM AND OTHER SALE DEEDS. EXT.R3.J: COPY OF THE TAX RECEIPT FOR PAYMENT OF TAX FOR 75 CENTS IN R.S.NO.35/3 OF MALAYATTOOR VILLAGE. EXT.R3.K: COPY OF THE LICENSE OBTAINED FROM THE MALAYATTOOR- NEELESWARAM GRAMA PANCHAYAT FOR STONE QUARRY FOR THE PERIOD UP TO 31/03/2009. EXT.R3.L: COPY OF THE PERMIT VALID UP TO 30/11/2008 FROM THE GEOLOGIST FOR EXTRACTING STONE FROM QUARRY. EXT.R3.M: COPY OF THE SURVEY PLAN OF THE LAND DESCRIBED IN EXT.R3 (I) PERMIT ISSUED BY THE VILLAGE OFFICER. EXT.R3.N: COPY OF THE PROCEEDINGS OF THE TAHSILDAR, ALUVA CERTIFYING THAT THE LAND COMPRISED IN R.S. NO. 35/2 OF AYYAMPUZHA VILLAGE. EXT.R3.O: COPY OF THE METAL CRUSHER QUARRY LICENSE ISSUED BY THE NEELESWARAM GRAMA PANCHAYAT. EXT.R3.P: COPY OF THE QUARRYING PERMIT NO. 183/08- 09/MM/GS/CRPS/DOE/278/E2/09. EXT.R3.Q: COPY OF THE DOCUMENT NO.1023/2005. EXT.R3.R: COPY OF THE PRIOR TITLE DEED OF THE PROPERTY HAVING NO.594/1987 OF SRO, ANGAMALY. EXT.R3.S: COPY OF THE AGREEMENT EXECUTED BY DR. THIRUMENI. EXT.R5.A: COPY OF THE PATTA DTD. 25/05/70. EXT.R5.B: COPY OF THE SKETCH PREPARED BY THE VILLAGE OFFICER, MALAYATTOOR DTD. 09/06/06. W.P.(C). NO.9605/2008-R: EXT.R6.A: COPY OF THE CONSENT DTD. 04/01/08 ISSUED BY R.1. EXT.R6.B: COPY OF THE CONSENT DTD 12/02/08 ISSUED BY R.1. EXT.R6.C: COPY OF THE QUARRYING PERMIT DTD. 16/01/09 ISSUED BY R.2. EXT.R6.D: COPY OF THE STOP MEMO DTD. 14/01/09 ISSUED BY THE PANCHAYATH. ANNEXURE R1.A: COPY OF THE CONSENT OF POLLUTION CONTROL BOARD. ANNEXURE R1.B: COPY OF THE DETAILED THREE CIRCULAR DTD. 13/06/2007, 10/06/2008 AND 18/10/2006 OF THE POLLUTION CONTROL BOARD. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== W.P(C).No.9605 of 2008 ================== Dated this the 13th day of August, 2009 J U D G M E N T The 1st petitioner claims to be a resident of Ward No.2 of Malayattoor-Neeleeswaram Grama Panchayat. The 2nd petitioner is a Grama Samrakshana Samithi representing the interests of the persons affected by illegal granite quarrying within the Ernakulam District. In this writ petition, they are aggrieved by the functioning of a quarry by respondents 3 and 4 situated 65 meters east of the 1st petitioner's grocery shop. When the quarrying was first started, the quarrying was operated without using dynamite and other explosive substances. Later, dynamite and electronic detonators started to be used, causing danger to nearby residents. The petitioners would contend that apart from the quarrying being dangerous to human life and property, the same is also otherwise illegal. It is under the above circumstances, the petitioners have approached this Court seeking the following reliefs: “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 W.P.C.9605/08 2 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; e) To issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case.” 2. The petitioners raise several contentions in support of the challenge against the quarrying done by respondents 3 and 4. One is that the quarrying is done in a land assigned to the predecessor-in- interest of respondents 3 and 4 for the purpose of rubber cultivation with a specific condition that the land shall not be used for any other purpose than the purpose for which it has been assigned. It is further contended that in the conditions of assignment the right of the Government in the quarries in the land is reserved, not to be affected in anyway by the grant. According to the petitioners, respondents 3 and 4 are not using the land for cultivating rubber at all and they have, by operating a quarry therein, violated the conditions of the patta misappropriating the mineral wealth in the property which the Government had reserved to itself while assigning the property and therefore, the land is liable to be resumed by the Government cancelling the patta. Their further contention is that the quarrying is done without appropriate licences, permits, consent etc. 3. Respondents 3 and 4 stoutly oppose the contentions of the W.P.C.9605/08 3 petitioners. According to them, they are conducting the quarrying operations in accordance with a quarrying permit issued by the Geologist. They would contend that they have obtained licences from the Panchayat and consent from the Pollution Control Board. They would further submit that there is nothing illegal in their conducting the quarrying operations in the land. The counsel for respondents 3 and 4 would contend that they have not violated any of the conditions of the patta. The submission is that under Clause 13 of the order of assignment, the right of the Government in the quarries is reserved. That would only mean that if they operate quarries in the land, they are liable to pay royalty to the Government and that is no reason to term the quarrying illegal and for cancellation of the assignment on that ground. Respondents 3 and 4 are doing quarrying with appropriate permits issued by the Geologist under the Kerala Minor Mineral Concession Rules and, therefore, respondents 3 and 4 had not violated the conditions of the assignment is the contention raised by them. According to them, even assuming that they have violated the conditions of the patta, quarrying permit has been obtained after the Revenue authorities have issued possession certificate etc. which would amount to permission to undertake quarrying in the land. 4. I have considered the rival contentions in detail. 5. In view of the specific contention raised by the petitioners W.P.C.9605/08 4 that quarrying undertaken by respondents 3 and 4 is in violation of the patta issued to them, I directed the 5th respondent to produce a copy of the patta issued to the predecessor-in-interest of respondents 3 and 4 as also the order of assignment of land on registry. The same have been produced as Ext.P5(a). The patta is one issued to one Uthuppu Simon, who is the predecessor-in-interest of respondents 3 and 4, containing the caption that the same is issued under Rule 8-D(ii) of Special Rules for Assignment of Government Lands for Rubber Cultivation. (In the present rules, there is no Rule 8D and therefore, the form may have been printed under the erstwhile rules, which have been replaced by the Special Rules for Assignment of Government Lands for Rubber Cultivation, 1960). The order of assignment of land on registry also contains the caption, 'Form of Order of Assignment of Land on registry for Rubber Cultivation” . Clause 4 of the Order of Assignment reads thus: “4. The land assigned will be about 1.41 hectares, in area of which 1.21 hectares shall be put under rubber cultivation and the remaining area shall be used for the construction of a dwelling house and for a domestic garden, if so desired by the assignee.” Clause 5 reads thus: “The registry shall be liable to be cancelled for contravention of conditions 1 to 3 above or the conditions specified in the patta.” Clause 10 reads thus: “The assignee shall not use the land or suffer it to be used except for the purposes for which it is assigned.” W.P.C.9605/08 5 Clause 13 reads thus: “The existing and customary rights of Government and the public in roads, Paths, rivers, streams, channels through or bordering the land, and the right of Government in mines and quarries subjecent to the said land reserved and are in no way affected by the grant.” Condition No.1 of the patta reads thus: “1. The assignee shall not use the land or suffer it to be used except for the purpose for which it is assigned.” Rule 20 of the Special Rules for Assignment of Government Land for Rubber Cultivation, 1960, reads thus: “20. (1) Non-compliance with or violation of any of the rules or condition of licence shall entail the cancellation of the licence. The Government may resume the land in such cases and no compensation shall be payable to such licensees. (2) In the event of such resumption the Government may recover form the original allottee the entire amount of the loans distributed to him with interest till date, and the survey and demarcation charges including contour alignment charges and all other sums use from him in respect of the land resumed: Provided, however, that if the land contains improvements made by the original allottee and Government decided to take over the land with such improvements, the Government may recover from the allottee the amount, if any, by which the value of the improvements as assessed by the Director of Agriculture falls short of the amounts due to the Government from the allottee: Provided further that if the value of the improvements aforesaid is in excess of the amounts due to the Government, the allottee shall have no claim for such excess. (3) Government shall also be at liberty to recover proportionate rental upto the date of resumption at the rates applicable to similar lands. (4) When the entire amount due to the Government from the allottee has been recovered under sub-rule (1) aforesaid or the allottee has made alternate arrangements for payment of such amounts to the satisfaction of the Director of Agriculture the allottee may be permitted to dismantle and remove the buildings or other structures, if any; constructed by him.” W.P.C.9605/08 6 Section 8 of the Kerala Land Assignment Act reads thus: “8. Assignment to take effect with restrictions, conditions, etc. according to their tenor.- All the provisions, restrictions, conditions and limitations contained in any Pattah or other document evidencing the assignment of Government land or of any interest therein shall be valid and take effect according to their tenor, notwithstanding any law for the time being in force or any custom or contract to the contrary. Explanation.- In this section, the expression, “Government land” shall include land under the control or management of the Government at the time of the assignment.” In view of the conditions of assignment and the above said provisions of law, I have absolutely no doubt in my mind that respondents 3 and 4 could not have undertaken any sort of activities in the property assigned to their predecessor-in-interest other than cultivation of rubber. Respondents 3 and 4 have no case that the property has been cultivated with rubber. On the other hand, their specific contention is that the land is totally unsuitable for rubber cultivation. According to me, if respondents 3 and 4 had a case that the land is not suitable for rubber cultivation, they could not have on their own used the same for any other purpose, especially quarrying, which has been specifically reserved for the Government, in the said property. Therefore, even if respondents 3 and 4 could not have used the land for rubber cultivation, they could certainly not have done quarrying, except with prior permission of the Government and getting the conditions of grant changed appropriately. The counsel for respondents 3 and 4 would contend that the fact that the Village Officer had issued possession W.P.C.9605/08 7 certificate pursuant to an application submitted by respondents 3 and 4 for applying for quarrying permit and the fact that the Geologist had issued a quarrying permit would go to show that it was with the permission of the Government that respondents 3 and 4 had undertaken the quarrying. I am unable to agree. Simply because a possession certificate has been issued by the Village Officer for applying for quarrying permit and a quarrying permit has been issued by the Geologist, the same do not absolve respondents 3 and 4 from honouring the specific conditions of assignment contained in Ext.P5(a). That would not also lead to an inference of permission from the Government for quarrying also. The permission contemplated should have been on an application for such permission submitted by respondents 3 and 4. The permission cannot be inferred from the mere fact that respondents 3 and 4 had obtained a quarrying permit on the basis of the possession certificate issued by the Village Officer. Further when the assignment itself is with the condition that the right of the Government in the quarries is reserved, by appropriating the granite available in the property to themselves, actually respondents 3 and 4 have misappropriated property belonging to the Government without permission. Therefore, in view of Rule 20 of the Rules quoted above, the assignment itself is liable to be cancelled. In view of the fact that respondents 3 and 4 have misappropriated themselves the property W.P.C.9605/08 8 belonging to the Government by quarrying granite from the quarry which has been reserved to the Government, respondents 3 and 4 are also liable to refund the entire value of the granite quarried by them from the property in question to the State. 6. The counsel for respondents 3 and 4 would contend that not only respondents 3 and 4 but also many other similar assignees have undertaken quarrying in the properties assigned for the specific purpose of cultivation of rubber. That does not absolve respondents 3 and 4 from the liability. On the other hand, it is the bounden duty of the 5th respondent to see that none of the similar assignees do quarrying in the properties assigned to them for the purpose of cultivation of rubber and also to recover the value of the granite, which they have appropriated to themselves by quarrying in the properties in question, after cancelling the pattas issued to them. In fact I am surprised to find that in spite of this court bringing the violation of the conditions of the patta, the Tahsildar and the Geologist have filed counter affidavits without any serious contentions against such violations, when it was their bounden duty to prevent the property belonging to the State being misappropriated by respondents 3 and 4 and others. 7. In the above circumstances, this writ petition is disposed of with the following directions: W.P.C.9605/08 9 (a) The 5th respondent shall take immediate steps to cancel the patta issued to respondents 3 and 4 for violation of the conditions of assignment as well as the rules under which the assignment has been granted. In view of the fact that respondents 3 and 4 have appropriated the properties belonging to the Government in the form of granite quarried from the property which was reserved to the Government, the 5th respondent shall take immediate steps to see that the value of the granite quarried by respondents 3 and 4 is recovered from respondents 3 and 4 in accordance with law after complying with all procedural formalities thereof. (b) If, any similarly situated assignee has conducted quarrying in the properties assigned to them for rubber cultivation, the 5th respondent shall take appropriate proceedings against them also for cancelling of patta and recovery of value of the granite quarried by them, after affording an opportunity of being heard to them as in the case of respondents 3 and 4 as directed above. (c) The above proceedings against respondents 3 and 4 and other assignees who are guilty of violation of conditions of the grant shall be initiated and completed as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment and a report shall be filed in this Court within two weeks therefrom. Post this case for that purpose on 7.12.2009. W.P.C.9605/08 10 Before parting with the case, I note with distress that despite such illegality on a large scale having been brought to the notice of respondents 2, 5 and 6 they have not chosen to act on their own to protect the natural resources of the State which belong to the people. In the counter affidavits filed by respondents 2 and 6, they did not choose to take exception to the action of respondents 3 and 4 and instead of taking appropriate action against them and other similar persons, they have taken a stand favourable to respondents 3 and 4. The natural resources of the State belong to the people and respondents 2, 5 and 6, who are duty bound to protect the same, have taken a stand favourale to persons who have illegally appropriated the same unto themselves, thus failing in their duties. I fervently hope that they would at least act now with the urgency the situation demands and restore to the State what is legitimately due to it, failing which the Government shall initiate appropriate action in the matter against them also. The Secretary to the Government shall also file a report in regard to the action taken in respect thereof. The Registry shall forward a copy of this judgment to the Chief Secretary to the Government for appropriate action and report. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge W.P.C.9605/08 11 sdk+ S.SIRI JAGAN, JUDGE