IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 RP.No. 1044 of 2009(J) ---------------------- AGAINST THE JUDGEMENT IN WPC.33695/2004 .................... REVIEW PETITIONER(S): 8TH RESPONDENT ------------------------------------ M.D.GEORGE, PROPRIETOR, M.D.GEORGE & COMPANY, MADAPPILLIL HOUSE, OORAKKADU KARA, EDATHALA P.O., ERNAKULAM. BY ADV. SRI.ANIL SIVARAMAN RESPONDENT(S): PETITIONER & RESPONDENTS 1-7/RESPONDENTS ------------------------------------------------------- 1. MINI O.K., W/O. GEORGE JOSEPH, MUKKADACKAL HOUSE, KESAVANPADY, THIRUVANKULAM. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, ERNAKULAM. 4. THE GEOLOGIST, DEPARTMENT OF MINING & GEOLOGY, CIVIL STATION, KAKKANAD, ERNAKULAM. 5. THE DIRECTOR, MINING AND GEOLOGY, KESAVADASAPURAM, THIRUVANANTHAPURAM. 6. KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS CHAIRMAN, THIRUVANANTHAPURAM. 7. THE DISTRICT MEDICAL OFFICER, ERNAKULAM. 8. VADAVUKODE-PUTHENCRUZ GRAMA PANCHAYAT, PUTHENCRUZ, ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY. R1 BY ADV. SRI.GEORGE POONTHOTTAM R2 RO R5, R7 BY GOVT. PLEADER SMT.SMITHA SUKUMAR R6 BY SRI.M.K.CHANDRA MOHANDAS,SC. R8 BY ADV.SRI.VAKKOM N.VIJAYAN THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 17/08/2010, ALONG WITH RP NO.1045 OF 2009 AND CONNECTED CASES,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- R.P.Nos.1044 OF 2009 IN W.P(C).33695 OF 2004 J, 1045 OF 2009 IN W.P(C).5234 OF 2005 W, 1046 OF 2009 IN W.P(C).30446 OF 2004 Y & 1047 OF 2009 IN W.P(C).30523 OF 2004 ------------------------------------------- Dated this the 17th day of August, 2010 O R D E R 1.These review petitions are filed by the private respondent in four writ petitions which were disposed of as per a common judgment dated 13.7.2009. He had filed W.P(C).5234/05 seeking interference with a stop memo issued by the Tahsildar. As noted in the judgment sought to be reviewed, the complaint against the aforesaid operator was that under the cover of licence over a very small extent or even without licence, the said operator is carrying on quarrying activities in violation of laws relating to minor mineral rules. There was really no serious contest even to the fact situation disclosed through photographs which were placed on record as part of the writ petitions. With the passage of time, he had filed W.P(C).6380/09, challenging the decision of the RP.1044/09 & con cases. 2 Grama Panchayat and the Tribunal for Local Self Government Institutions regarding the operational capacity of the crushers he was employing. That writ petition had essentially worked itself out as recorded in paragraph 3 of the judgment sought to be reviewed. As a consequence, today, that writ petition has also been closed. All that now remains is the consideration of the review petitions which were ignited by a notice issued by the Geologist in the Mining and Geology Department, Ernakulam, requiring the review petitioner to remit an amount of Rs.1,18,49,920/- as escape loyalty referred to unauthorised excavation and removal of rubble from the quarry. The quantification is made on the basis of materials available before this Court in the form of a Commissioner's report. The review petitioner expressed the apprehension of the operator that having regard to the observations made in the judgment sought to be reviewed, the operator is likely to be penalised with the demand, acting on the impugned judgment. RP.1044/09 & con cases. 3 2.Paragraphs 6 and 7 of the judgment sought to be reviewed reads as follows: “It is quite surprising that the materials on record disclose that for a permit to quarry about 50,000 metric tonnes, it is stated that the operator had amassed and taken away approximately 7,50,000 metric tonnes and has paid royalty only for a negligible portion of the materials. This reflects the failure of the executive establishments concerned. Those responsible have not taken adequate steps to prevent the illegal mining. They have also not secured the interest of the State by ensuring due remittance to the exchequer. The prohibitory order regarding the quarrying came only because of the interlocutory orders in these matters. There is reason to take the view that the officials who are involved in the matter or who ought to have acted with due diligence as public servants, are either unfit to hold the public office held by them or RP.1044/09 & con cases. 4 otherwise, were thoroughly negligent in carrying out their duties and responsibilities. If these two inferences are to be excused, the third would necessarily be that they were corrupt and their palms were greased to push through this assault to national wealth. The atrocious inaction is not an error of judgment. It is sheer failure to discharge duties and responsibilities; pubic, including statutory. This judgment will obtain necessary attention of the Chief secretary, the Principal secretaries in the Department of Finance, Revenue and Public works Department and also the Director of Vigilance. The learned Government Pleader will ensure that this is done.” 3.The afore-extracted portion of the judgment does not reflect that this Court had issued any direction to the operator to pay any amount to the State. It also does not contain any finding specifically quantifying the amount, if any, that the RP.1044/09 & con cases. 5 State may be eligible or entitled to recover. Obviously therefore, any proceedings for recovery pursuant to Annexure A2 notice has necessarily to be after affording the petitioner in these review petitions an opportunity of hearing in relation to his defence, if any, that may be offered in opposition to the demand made in the impugned notice. Without prejudice to the review petitioner showing cause against the demand made by the Geologist, these review petitions are closed holding that no ground for review of the judgment is made out as there is no error apparent on the face of record of the judgment or there is no ground on which the review petitions sustain. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.21/08. RP.1044/09 & con cases. 6 THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- R.P.Nos.1044 OF 2009 IN W.P(C).33695 OF 2004 J, 1045 OF 2009 IN W.P(C).5234 OF 2005 W, 1046 OF 2009 IN W.P(C).30446 OF 2004 Y & 1047 OF 2009 IN W.P(C).30523 OF 2004 & W.P(C).No.6380 OF 2009 ------------------------------------------- Dated this the 5th day of April, 2010 O R D E R The interim order is extended by two months. THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.05/04. RP.1044/09 & con cases. 7 THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- R.P.Nos.1044 OF 2009 IN W.P(C).33695 OF 2004 J, 1045 OF 2009 IN W.P(C).5234 OF 2005 W, 1046 OF 2009 IN W.P(C).30446 OF 2004 Y & 1047 OF 2009 IN W.P(C).30523 OF 2004 & W.P(C).No.6380 OF 2009 ------------------------------------------- Dated this the 6th day of November, 2009 O R D E R 1.These review petitions are filed challenging the common judgment issued on 13.7.2009 in W.P(C).30523/04 and connected matters. 2.The petitioner had a quarry and also a metal crushing unit. W.P(C).6380/09 filed by him came up for consideration on 8.7.2009. An interim order was granted on that day which contains the following: RP.1044/09 & con cases. 8 “As of now, he has confined his operational requirement to be restricted to the metal crushing unit, on the undertaking that he would not operate the quarry. He is not operating the quarry as of now”. It was following that, that the judgment sought to be reviewed was issued. 3.The judgment sought to be reviewed also contains certain directions to the Government in relation to different matters affecting the revenue, environment etc. The Government took steps but has concluded saddling the petitioner with the liability. The petitioner contends that this requires a look at the hands of this Court because such conclusion would not have been arrived at, except with the directions in the judgment sought to be reviewed and at any rate, the Government have deflected consideration without focusing on the matter even in terms of the directions. RP.1044/09 & con cases. 9 4.In view of what is aforesaid, these review petitions are admitted and tagged along with W.P(C).6380/09. The respondent appears through counsel who were appearing in the writ petitions. 5.Learned Government Pleader will place on record a detailed counter affidavit through a competent officer in the Government touching the matter, including as to whether the Government had identified the nexus of any officers or whether any officer has been found to have committed dereliction of duty even in supervision. It is clarified that these observations are not intended to be against the petitioner or any officer, but only to ensure that the counter affidavit that will be placed on record by the State Government would be a comprehensive one. RP.1044/09 & con cases. 10 6.It is further ordered that there shall be no distress action against the petitioner, as of now, on the basis of the orders that have followed on the basis of the judgment sought to be reviewed. Enforcement of the impugned demand will stand suspended for a period of four months. The revenue authorities will ensure that the quarry in question is not operated by any person having regard to the ecological impact, going by the materials on record. H/o. THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.6/11.