Kerala High Court
Jacob George vs Tomy Abraham on 18 October, 2016
Author: Mohan M.Shantanagoudar
Bench: Mohan M.Shantanagoudar, Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938
WA.NO. 2265 OF 2016 () IN RP.872/2016
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AGAINST THE JUDGMENT IN WP(C) 23849/2016
OF HIGH COURT OF KERALA
AGAINST THE ORDER IN RP 872/2016
OF HIGH COURT OF KERALA DATED 18-10-2016
APPELLANT(S)/REVIEW PETITIONER:
------------------------------
JACOB GEORGE
MAMMARAPALLIL, NARANAMOZHY PO,
PATHANAMTHITTA 689 711.
BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.MANU SEBASTIAN
SRI.P.J.JOE PAUL
RESPONDENT(S)/RESPONDENTS:
--------------------------
1. TOMY ABRAHAM
AGED 54 YEARS, S/O.ABRAHAM, MANIMALETH HOUSE,
VECHOOCHIRA PO, PATHANAMTHITTA DISTRICT-686 511.
2. THE DIRECTOR, DIRECTORATE OF MINING AND GEOLOGY
PATTAM PALACE PO, KESHAVADASAPURAM,
THIRUVANANTHAPURAM -685 004.
3. THE GEOLOGIST, MINING AND GEOLOGY DEPARTMENT
MINI CIVIL STATION, ARANMULA P.O.,
PATHANAMTHITTA DISTRICT -689 533.
R1 BY ADV. SRI.JOBI JOSE KONDODY
BY SENIOR GOVERNMENT PLEADER SHRI V.TEKCHAND
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
07.12.2016, THE COURT ON 16.12.2016 DELIVERED THE FOLLOWING:
MOHAN M.SHANTANAGOUDAR, C.J.
&
SATHISH NINAN, J.
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W.A. No.2265 of 2016
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Dated this the 16th day of December, 2016
J U D G M E N T
SATHISH NINAN, J.
The Writ Appeal is filed against the judgment in W.P(C) No.23849 of 2014 as affirmed in R.P. No.872 of 2016 filed by the appellant as review petitioner. The Writ Petition was originally disposed of as per judgment dated 17.08.2016. The appellant who was not a party to the Writ Petition filed the Review Petition with leave of the Court. As per order dated 18.10.2016, the Review Petition was dismissed.
2. Writ Petition was filed by the 1st respondent herein essentially seeking permission to W.A. No.2265 of 2016 -: 2 :- remove the materials which were quarried during the period 2012-13 and audited by the department of Mining and Geology as per Exts.P14 and P15 audit reports. As per judgment dated 17.08.2016, prayer was granted permitting the writ petitioner to remove 5,034.500 tonnes in terms of Ext.P15. The appellant a non-party to the writ petition filed R.P. No.872 of 2016 seeking review of the judgment on the ground that the writ petitioner had conducted quarrying operations without 'Licence under the Issue of Licence to Dangerous and Offensive Trades and Factories Rules, 1996' (hereinafter referred to as "the D&O licence") framed under the Kerala Panchayat Raj Act, 1994 and the writ petitioner was not entitled to remove the materials unauthorisedly quarried. The Review Petition was dismissed confirming the judgment as originally passed in the Writ Petition.
W.A. No.2265 of 2016 -: 3 :-
3. Writ Petitioner had quarrying licence for different periods from 08.02.2010. The issue at hand pertains to the period 2012-13. The allegation of the appellant is that, for the said period, the writ petitioner did not possess the D&O licence without which he could not have conducted quarrying operations. Since the quarrying operations conducted without the said licence were illegal in terms of Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short, "the MMDR Act"), the minerals, tools, equipments, vehicles, etc., are to be confiscated. Therefore, according to the appellant, the quarrying operations conducted by the writ petitioner without the D&O licence would be an illegal activity and therefore, in terms of sub-sec.(4) of Sec.21 of the MMDR Act, confiscation is to be made in respect of the minerals and equipments and he cannot be permitted to remove the W.A. No.2265 of 2016 -: 4 :- illegally quarried material. In substance, the contention is that for the violation of the D&O licence, the writ petitioner should face the consequence under the MMDR Act.
4. The words, "without any lawful authority"
referred to in sub-sec.(4) of Sec.21 of the MMDR Act refers to the authority to be granted under the said Act and the Rules framed thereunder. Absence of D&O licence does not entail confiscation under Sec.21(4) of the MMDR Act. Absence of 'lawful authority' in the MMDR Act refers to the absence of lawful authority under the said Act. Therefore, what is material for the purpose of Sec.21(4) of the MMDR Act is the existence of necessary authority under the said Act and Rules. If there is violation of D&O Rules, definitely, proceedings could be initiated by the Panchayat under the Kerala Panchayat Raj Act, 1994 (for short, "the 1994 Act") and the Rules W.A. No.2265 of 2016 -: 5 :- framed thereunder.
5. As stated supra, the writ petitioner is seeking assistance of this Court to enable him to remove the quarried materials. The question is, would the writ petitioner be justified in seeking the assistance of this Court if he has conducted quarrying operations without the necessary licence? can he seek invocation of the jurisdiction of this Court under Article 226 of the Constitution of India? Definitely, the answer could only be in the negative.
6. At this juncture, it would be relevant to refer to Section 236(5) of the 1994 Act.
"236. General provisions regarding licences and permissions.--................................................................
(5) If an act for which any such licence or permission is necessary is done without such licence or permission or in a manner inconsistent with the terms of the licence or permission obtained then.-
W.A. No.2265 of 2016 -: 6 :-
(a) the Secretary may, by notice require the person so doing such act, to alter, remove or as far as practicable restore to its original state, the whole, or any part of any property, movable or immovable, public or private, affected thereby, within a time to be specified in the notice; and shall, so require if directed by the Village Panchayat.
(b) if no penalty has been specifically provided in this Act for so doing such act, the person so doing it shall be punishable with fine not exceeding one thousand rupees and with such higher rate of fine in case of repetition of offence and after three offences much severe punishment may be awarded or prosecution proceedings may be initiated as the Panchayat may deem fit."
On the face of such express powers conferred on the Secretary of the Panchayat even for restoration, definitely, this Court would not assist or come to the aid of a person to perpetuate or assist in achieving the goal of an illegal act.
7. Now the issue to be considered is the contention regarding the alleged illegal act namely, quarrying conducted by the writ petitioner without W.A. No.2265 of 2016 -: 7 :- the D&O licence during the period 2012-2013. The learned counsel for the writ petitioner would draw our attention to Annexure-R2(i) which is the true copy of the acknowledgment receipt issued by the Panchayat dated 24.02.2012. Therein as against the column, 'subject', it is shown as, 'license'. According to the learned counsel for the writ petitioner, the said receipt is the acknowledgment towards the submission of the application for issuance of D&O licence for the period 2012-13. During the course of hearing, learned counsel for the writ petitioner has produced copy of the application dated 24.02.2012 for the issuance of licence for the period 2012-13. The acknowledgment receipt marked as Annexure-R2(i) referred to earlier is also dated 24.02.2012.
8. The appellant has filed objection against the documents produced by the writ petitioner W.A. No.2265 of 2016 -: 8 :- challenging the genuineness of the same. In this context, it would be relevant to refer to the counter affidavit filed by the writ petitioner to Review Petition No.872 of 2016 before the learned Single Judge. In paragraph 5 of the counter it is stated thus:
"5. I, on coming to know about the decision of this Honourable Court reported in 2008 (1) KLT 937 made my application for D&O Licence for the year 2012-13. The Naranamoozhy Grama Panchayat was of the opinion that since there is no objection towards operation of my quarry, I was permitted to operate my quarry. My D&O Licence application for operating my quarry was for the first time considered in the panchayat committee meeting of the Naranamoozhy Grama Panchayat held on 19.02.2013 and the question No.II(4) of the said meeting decided to grant me the licence and directed the Secretary of the Panchayat to issue me the D&O Licence. A true copy of the minutes of the meeting of the Naranamoozhy Grama Panchayat under the Right to Information Act with covering letter dated 23.07.2013 is produced herewith and may be marked as Annexure-R1
(a). Therefore, I was carrying out quarrying operation for the year 2012-13 on the strength of Annexure R1(a) permission W.A. No.2265 of 2016 -: 9 :- granted by the Panchayat Committee under Section 233 of the Kerala Panchayat Raj Act, 1994 and the D&O Licence issued by the Secretary, Naranamoozhy Grama Panchayat based on Annexure-R1(a)."
Therefore, he had a specific case that application seeking licence was submitted by him before the Naranamoozhy Grama Panchayat. According to him, the application was considered by the Panchayat only on 19.02.2013 though there was no objection in the meantime towards the operation of the quarry. He further refers to the document produced as Annexure- R1(a), viz., minutes of the meeting of the Naranamoozhy Grama Panchayat dated 19.02.2013 which refers to the application for licence submitted by the writ petitioner for the relevant period. As is evident from Annexure-R1(a), decision was taken by the Panchayat to grant licence since the writ petitioner has produced all the necessary documents. The said averments and documents are to be W.A. No.2265 of 2016 -: 10 :- considered along with the counter affidavit filed by the Director, Mining and Geology, dated 08.08.2016, in the Writ Petition wherein it is stated that the writ petitioner's quarry was in operation till the financial year 2012-13, that during the said period there was public protest against the functioning of the quarry, whereupon, the Naranamoozhy Grama Panchayat did not renew the D&O licence for the financial year 2013-14. This indicates that even the said authority was aware of the fact that the writ petitioner possesses necessary licence from the Panchayat during the period in question, i.e., 2012-
13. This, when considered along with Annexure-R2(i), viz., the acknowledgment receipt of the very same date as shown in the application, would persuade this Court to hold in favour of the writ petitioner regarding the submission of the application before the Naranamoozhy Grama Panchayat for D&O licence for W.A. No.2265 of 2016 -: 11 :- the relevant period. There is no reason to disbelieve that the application for the period 2012- 13 dated 24.02.2012 was submitted by the writ petitioner before the Panchayat on 24.02.2012.
9. According to the learned counsel, on the application, though submitted to the Panchayat on 24.02.2012, no orders were passed or communicated to the writ petitioner and hence by virtue of sub- clause (3) of Section 236 of the 1994 Act, licence shall be deemed to have been granted. He also brought to our notice the judgment of this Court in Sudhakaran v. Pallichal Grama Panchayat (2016 [2] KLT 175) to canvass that, if orders on the application for licence are not communicated within the prescribed period, the applicant will be clothed with 'deemed licence'. Here it would be relevant to refer to Section 236(3) of the 1994 Act: W.A. No.2265 of 2016 -: 12 :-
"236. General provisions regarding licences and permissions.--.......................................................................
(3) Save as aforesaid, if orders on an application for any such licence or permission are not communicated to the applicant within thirty days or such longer period as may be prescribed in any class or cases after the receipt of the application by the Secretary, the application shall be deemed to have been allowed for the period, if any, for which it would have been ordinarily allowed and subject to the law, rules and bye-laws and all conditions ordinarily imposed."
10. The provision is very clear and categoric to the effect that if orders on application for licence are not issued within 30 days or such longer period as prescribed, it shall be deemed that the application for licence has been granted. Placing reliance upon the same, the counsel for the writ petitioner contends that the writ petitioner is entitled for shelter under the deeming provision under Section 236(3) of the 1994 Act.
11. Learned counsel for the appellant would contend that the deeming provision would come into W.A. No.2265 of 2016 -: 13 :- play only if all the necessary documents required for grant of D&O licence has already been submitted along with the application for issuance of licence. In the preceding portion of the judgment, we have referred to Amnnexure-R1(a) produced by the writ petitioner in the counter affidavit to the Review Petition, which is a copy of the minutes of the meeting of the Panchayat Committee. As is evident from the said minutes, the Panchayat has taken note of all the necessary documents, eight in number, produced along with the application. The documents referred to therein are:
"(1) D&O Application/Affidavit.
(2) Quarry Licence.
(3) Location Map.
(4) Mining and Geology Report.
(5) NOC from Department of Fire and Safety. (6) Pollution Control.
(7) Explosives Licence.
(8) Certificate from Department of Labour." W.A. No.2265 of 2016 -: 14 :-
Therefore, it is evident that all the necessary documents were made available by the writ petitioner before the Panchayat seeking grant of licence. So the contention on the said ground, falls.
12. Though the appellant would raise contentions as against the consent of the Pollution Control Board for the relevant period, viz., 2012- 13, it is pertinent to note that there was no challenge for the appellant in the said regard before the learned single Judge. His only contention was absence of D&O licence from the Naranamoozhy Grama Panchayat.
13. The learned single Judge did not have the benefit of the application for licence before him and consequently negatived the plea of the writ petitioner based on Section 236(3). In view of the fact that an application for licence had been submitted before the Panchayat on 24.02.2012, we W.A. No.2265 of 2016 -: 15 :- hold that the writ petitioner was entitled to the benefit of the deeming provision in Section 236(3) of the 1994 Act and must be deemed to have been granted the licence.
14. As noted by the learned single Judge, as is evident from Ext.P15, as on 23.03.2013 there was a closing stock of 5,034.500 tonnes of granite stones to be transported and the writ petitioner had paid Rs.6,00,000/- as royalty for the period from 01.04.2012 to 31.03.2014. It is also evident from Ext.P15 that P-Forms were issued for transportation of the quarried materials from the crusher unit between 01.04.2012 to 23.03.2013 for 60650 tonnes of granite building stones.
15. In the circumstances, though for different reasons, the directions of the learned single Judge in the judgment dated 17.08.2016 in W.P(C) No.23849 of 2016 as confirmed in the order dated 18.10.2016 W.A. No.2265 of 2016 -: 16 :- in R.P. No.872 of 2016 are not liable to be interfered with.
The Writ appeal fails and it is accordingly dismissed.
MOHAN M.SHANTANAGOUDAR, CHIEF JUSTICE.
SATHISH NINAN, JUDGE.
vsv