Kerala High Court
P.O.Varghese vs The District Collector on 18 December, 2020
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942
WP(C).No.18683 OF 2020(I)
PETITIONER/S:
1 P.O.VARGHESE, AGED 60 YEARS, S/O. P. V. OUSEPH,
INCHAKKA PALATTY HOUSE, THABORE P. O., MOOKKANNOOR
VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT,
PIN - 683 577.
2 P. V. VARGHESE, AGED 75 YEARS, S/O.VAREETH, PALATTY
HOUSE, THABORE P. O., MOOKKANNOOR VILLAGE, ALUVA
TALUK, ERNAKULAM DISTRICT, PIN - 683 577.
3 P. T. VARGHESE, AGED 62 YEARS, S/O. TARIATH,
PUTHUSSERY HOUSE, THABORE P. O., MOOKKANNOOR VILLAGE,
ALUVA TALUK, ERNAKULAM DISTRICT,
PIN - 683 577.
BY ADVS.
SHRI.P.SHAIJAN JOSEPH
SRI.S.SREEKUMAR (SR.)
RESPONDENT/S:
1 THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, CIVIL
STATION, KAKKANAD P. O., KOCHI, PIN - 682 030.
2 REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM
DISTRICT, PIN - 682 001.
3 TAHSILDAR, ALUVA TALUK, CIVIL STATION, ALUVA P. O.,
ERNAKULAM, PIN - 683 101.
4 VILLAGE OFFICER, MOOKKANNOOR VILLAGE, MOOKKANNOOR P.
O., ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683 577.
5 THE CHAIRMAN, STATE ENVIRONMENTAL IMPACT ASSESSMENT
AUTHORITY (SEIAA), PALLIMUKKU, PETTA,
THIRUVANANTHAPURAM, PIN - 695 001.
WP(C).No.18683/2020 2
6 DISTRICT ENVIORNMENT IMPACT ASSESSMENT AUTHORITY
(DEIAA) ERNAKULAM DISTRICT, CIVIL STATION,
KAKKANAD P. O., KOCHI, PIN - 682 030.,
REPRESENTED BY ITS CHAIRMAN.
7 THE DIRECTOR, MINING AND GEOLOGY, DIRECTORATE,
KESAVADASAPURAM, PATTOM PALACE P. O.,
THIRUVANANTHAPURAM, PIN - 695 004.
8 THE GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF
MINING AND GEOLOGY, CIVIL STATION,
KAKKANADU P. O., KOCHI - 682 030.
9 THE SENIOR ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD, DISTRICT
OFFICE, GANDHI NAGAR, ERNAKULAM, PIN - 682 020.
10 DEPUTY CHIEF CONTROLLER OF EXPLOSIVES,
KENDRIYA BHAVAN, BLOCK C-2, 3RD FLOOR CSEZ,
KAKKANAD P. O., ERNAKULAM, PIN - 682 017.
11 MOOKKANNOOR GRAMA PANCHAYAT,
MOOKKANNOOR P. O., MOOKKANNOOR VILLAGE, ALUVA
TALUK, ERNAKULAM DISTRICT, PIN - 683 577,
REPRESENTED BY ITS SECRETARY.
12 GIGI MATHEW, PROPRIETOR, GKV GRANITES,
KOLOTHUMKUZHY HOUSE, PATTIMATTOM P. O.,
CHOORAKODE, ERNAKULAM, PIN - 683 565.
ADDL.R13 ASSISTANT EXECUTIVE ENGINEER,
KERALA WATER AUTHORITY, SUB DIVISION OFFICE,
ANGAMALY, ANGAMALY.P.O., PIN-683 572.
ADDL.R14 SECRETARY, ANGAMALY BLOCK PANCHAYAT,
ANGAMALY P.O., PIN-683 572.
(ARE IMPLEADED AS ADDL.R13 AND R14 AS PER ORDER
DATED 06-11-20 IN IA 2/20.)
BY GOVERNMENT PLEADER, SMT.R.RANJITA
R9 BY SRI.S.BIJU, CGC
R10 BY SRI.RAJAGOPALAN.A., CGC
R12 BY ADV. SRI.PHILIP J.VETTICKATTU
WP(C).No.18683/2020 3
R13 BY SHRI.P.BENJAMIN PAUL, SC, KERALA WATER
AUTHORITY
BY SRI.T.NAVEEN, STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-12-
2020, THE COURT ON 18-12-2020 DELIVERED THE FOLLOWING:
WP(C).No.18683/2020 4
J U D G M E N T
Dated this the 18th day of December, 2020 This matter relates to quarrying operation conducted by the 12th respondent, Gigi Mathew, Proprietor of GKV Granites in Mookkannoor Village, Ernakulam District.
2. This writ petition was filed originally challenging Ext.P28 decision of the Sub Collector, Fort Kochi, and Ext.P31 decision of the District Collector, Ernakulam. Thereafter, the writ petition was amended by raising a challenge to Ext.P5 environmental clearance, Exts.P7 and P8 consent issued by the Kerala Pollution Control Board, Ext.P17 licence issued by the Deputy Chief Controller of Explosives, and Ext.P20 D&O licence issued by the Panchayat. WP(C).No.18683/2020 5
3. The quarrying operation is carried in survey Nos.10/3-1, 10/3-2, 10/4, 10/7 of Mookkannoor Village. This land originally belonged to one M.A.Jitheesh Kumar. As early as on 10/12/2007, a prohibitory order was issued by the Tahsildar, Aluva, prohibiting mining in the said land. This was based on complaints raised by the local residents. Challenging the stop memo, Jitheesh Kumar approached this Court by W.P. (C).No.13738/2008. This Court disposed of W.P. (C).No.13738/2008 on 29/04/2008 directing the Revenue Divisional Officer, Fort Kochi, to take a final decision. Thereafter, the Revenue Divisional Officer, by order dated 20/8/2008, produced as Ext.P4, permanently prohibiting operation of the quarry. This was for the reason that quarry operators did not have any licence and due to illegal quarry operations, damage has been caused to nearby houses. The nature of the order is one of the dispute raised in this WP(C).No.18683/2020 6 case. According to the petitioners, this order is passed under Section 133 of the Code of Criminal Procedure, 1973. According to the fourth respondent, this order is passed invoking powers conferred upon the revenue authorities in terms of Rule 58 of the Kerala Minor Mineral Concession Rules, 1967. It is submitted by the learned counsel for the 12th respondent, Tahsildar and Revenue Divisional Officer are the competent authorities appointed by the Government invoking its power under clause (iv) of Rule 3 of the Kerala Minor Mineral Concession Rules, 1967.
4. The 12th respondent purchased the land in question along with one K.K.Ravi in the year 2013. Thereafter, he submitted application for quarrying lease. As things stand now, he has all statutory permit and licence to operate the quarry. It may be appropriate to refer the relevant portion of Ext.P31 WP(C).No.18683/2020 7 in regard to the licence, permits, environmental clearance, owned and possessed by the 12th respondent.
1. Letter of Indent No.12590/M3/2015 dated 08/01/2016 of the Director of Mining and Geology, Thiruvananthapuram.
2. Mining Plan approved by Geologist, Ernakulam (DEO/277/E2/2016 dated 22.03.2016 District Geologist, Ernakulam).
3. Consent from Pollution Control Board(file No.PCB/EKM/DO-1/OA-226/17 dated 08.05.2017 from 04.05.2017 to 27.04.2020 issued by Kerala State Pollution Control Board, Ernakulam).
4. Environmental Clearance (District Environmental Impact Assessment Authority(DEIAA) Order No.P/513/2017(DIA/KL/MIN/2779/2017)dated 19.04.2017 (Environmental Clearance No.09/2017).
5. Explosive Licence No.E/SE/KL/22/138/E 102170 dated 15.06.2017 valid upto 31/03/2022 from Deputy Chief Controller & Explosives, Ernakulam.
6. D & O License from Panchayath, Licence No.301/2019-2020 dated 20.07.2019 from Secretary, Mookkannur Panchayath.
7. NOC from Irrigation Department-D7-2210/2018 dated 03/09/2019 from Executive Engineer, Edamalayar Irrigation Project.
8. Quarrying lease from Director of Mining & Geology executed in Form H from 29/07/2019 to 28.07.2027.
5. The present dispute appears to have been originated after the 12th respondent obtained statutory clearance, permits, licences etc. The petitioners, sensing an attempt to start quarrying operation by the 12th respondent, approached the revenue authorities. The 12th respondent also WP(C).No.18683/2020 8 approached the revenue authorities to lift the prohibitory order. The petitioners also approached this Court by W.P.(C).No.33422/2018 when the 12th respondent attempted to obtain clearance, permits and licences etc. Noting that the District Collector/Revenue Divisional Officer have seized of the matter, this Court disposed of the writ petition. Petitioners again approached this Court with W.P. (C).No.16080/2020 seeking consideration of the representation by the District Collector and challenging some of the clearance permit obtained by the 12th respondent. This Court disposed of the writ petition by judgment dated 21/8/2020 noting that the District Collector had already passed an order on 9/6/2020, a copy of which is produced as Ext.P31, directed the District Collector to communicate the order to the petitioners. The petitioners were also given liberty to workout their remedy through proper WP(C).No.18683/2020 9 channel. These intervening matters may not be necessary for detailed consideration as the same may not be necessary for the final decision on the challenge made before this Court. As already noted, the challenge in this case was originally mounted against Ext.P28 decision of the Sub Collector and Ext.P31 decision of the District Collector, Ernakulam. Thereafter, after amending, the petitioners raised challenge to permit, clearance, licences etc. of the 12th respondent. Ext.P28 is an order passed by the Sub Collector on 10/7/2020. It was observed therein that the prohibitory order issued by the Tahsildar in 2007 and permanent prohibitory order issued by the Collector in the year 2008 can be lifted. However, in the light of the directions in the writ petition, 33422/2018, the Sub Collector was of the view that it is for the District Collector to take a decision.
WP(C).No.18683/2020 10
6. The District Collector, in fact, before Ext.P28 order, dated 10/7/2020, of the Sub Collector, had taken a decision on 9/6/2020 pursuant to the judgment in W.P.(C).No.33422/2018, and ordered lifting of the prohibition by the Sub Collector. Ext.P31 is the said order. Thereafter, by Ext.P37 order, the Sub Collector lifted permanent prohibition of quarrying operations on 27/8/2020.
7. According to the learned Senior Counsel appearing for the petitioners, the Sub Collector exercising quasi judicial function cannot review his own decision. It was argued that the Sub Collector exercised the power under Section 133 of Cr.P.C, and therefore, the remedy of the aggrieved is to approach the revisional authority under the Cr.P.C. According to the 12th respondent, the revenue authority acted as a notified authority for imposing penalty under Rule 58 of the Mineral Conservation and Development Rules, WP(C).No.18683/2020 11 1988 and the order being an administrative order, it is open for such authority to review that order.
8. A Division Bench of this Court in Biju v. Union of India [2015 (3) KLT SN 17] succinctly distinguished administrative orders and orders passed under quasi judicial function. It was held that there is no embargo for the administrative authorities reviewing its own decision. The Court has to find out the nature of the authority exercised under law to distinguish as to whether an order passed exercising the power under the quasi judicial function or an administrative finding.
9. Section 133 of the Cr.P.C confers powers on the Sub Divisional Magistrate to remove nuisance. Procedures also have been prescribed to pass conditional order and final order. On a close reading of the provisions of Section 133, it is discernible that the powers discharged by the Sub WP(C).No.18683/2020 12 Divisional Magistrate is a quasi judicial function. In quasi judicial function, an authority is competent to decide the rights and obligations of the parties concerned. If any decision is taken involving rights and obligations of the parties, such proceedings will have to be called as a quasi judicial function. In quasi judicial function, a decision is taken in accordance with predetermined procedures or rules.
10. In this case, no procedures under Section 133 were followed. The original order of prohibition was issued by the Tahsildar as the revenue authority in exercise of the administrative power. Thereafter, this Court relegated the matter for decision by the Sub Collector, Fort Kochi. The Sub Collector, Fort Kochi, noting that no requisite licence has been obtained, permanently prohibited the quarrying operations. It is true that there were observations of nuisance. But such observation was incidental to WP(C).No.18683/2020 13 the finding that the quarrying operations were conducted without licence. Sub Collector also noted that the quarrying permit was not renewed. Therefore, such decision cannot be called as a decision passed under Section 133. No procedures as referable under Section 133 were followed. If any decision is taken without any reference to the procedures or rules, but only to secure the objectives of law, such decision has to be treated as an administrative decision dictated by administrative expediency. In the light of Biju's case supra, there is no embargo for the administrative authority to review its own order.
11. No doubt, the administrative authority cannot invariably review its own order, without any change of circumstances. In this case, the order can be justified for the reason that the 12th respondent produced all statutory clearances, licences etc to WP(C).No.18683/2020 14 review the earlier order. Therefore, I do not find that the order passed by revenue authorities including District Collector, requires interference.
12. Next point is the challenge in regard to various environmental clearances, licences etc obtained by the 12th respondent. According to the petitioners, this was obtained suppressing the material facts. The petitioners point out the distance to the nearby residence to the project site.
13. This Court under Article 226 cannot interfere with statutory licence, clearances, etc. directly unless the Court forms an opinion that such licence, clearances, etc., were issued by any authority without satisfying the mandatory requirement. Various factual parameters required for consideration have been adverted to before issuance of clearances, licence etc. If there is deliberate concealment of facts, it is always open for the petitioners to move WP(C).No.18683/2020 15 such authority to revoke clearances, permits, licence etc. This Court cannot adjudicate factual disputes and enter into a different finding. The scope of interference in such circumstances is very limited. It is only when there is patent illegality in recording fact finding, this Court would be justified in invoking its power under Article 226 of the Constitution.
14. In the light of the discussions as above, I find no merit in the writ petition. Accordingly, the writ petition is dismissed. No costs.
Sd/-
A.MUHAMED MUSTAQUE JUDGE ms WP(C).No.18683/2020 16 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF PROHIBITORY ORDER NO.C1/11138/07 DATED 10.12.2007 ISSUED BY 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.35935/2007 DATED 16.01.2008.
EXHIBIT P3 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.13738/2008 DATED 29.04.2008.
EXHIBIT P4 TRUE COPY OF PERMANENT PROHIBITORY ORDER NO.M-
8094/07 DATED 20.08.2008 PASSED BY 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF ENVIRONMENTAL CLEARANCE NO.09/2017 DATED 19.04.2017 ISSUED BY 6TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF REPRESENTATION DATED 7.9.2018 SUBMITTED BY 1ST PETITIONER TO 6TH RESPONDENT TO CANCEL EXHIBIT P5 ENVIRONMENTAL CLEARANCE.
EXHIBIT P7 TRUE COPY OF CONSENT NO.R17ERRCTO5204459 DATED 8.5.2017 ISSUED BY THE 9TH RESPONDENT TO THE 12TH RESPONDENT.
EXHIBIT P8 TRUE COPY OF RENEWED CONSENT NO.R17ERRCTO5204459 DATED 07.04.2020 ISSUED BY THE 9TH RESPONDENT TO THE 12TH RESPONDENT. EXHIBIT P9 TRUE COPY OF REPRESENTATION DATED 7.9.2018 SUBMITTED BY 1ST PETITIONER TO 9TH RESPONDENT PRAYING TO CANCEL EXHIBIT P7 CONSENT. EXHIBIT P10 TRUE COPY OF LETTER NO.12590/M3/2015 DATED 8.1.2016 ISSUED BY THE 7TH RESPONDENT TO THE 12TH RESPONDENT.
EXHIBIT P11 TRUE COPY OF PROHIBITORY NOTICE DATED 20.02.2008 ISSUED BY 8TH RESPONDENT. WP(C).No.18683/2020 17 EXHIBIT P12 TRUE COPY OF REPRESENTATION DATED 7.9.2018 SUBMITTED TO 7TH RESPONDENT TO CANCEL EXHIBIT P9.
EXHIBIT P13 TRUE COPY OF LETTER NO.B-3673/17 DATED 1.8.2017 SUBMITTED BY 11TH RESPONDENT TO THE 1ST RESPONDENT.
EXHIBIT P14 TRUE COPY OF APPLICATION DATED 3.10.2017 SUBMITTED BY THE 12TH RESPONDENT TO THE 1ST RESPONDENT.
EXHIBIT P15 TRUE COPY OF LETTER NO.D.O.E/2331/E1/17 DATED 1.11.2017 SUBMITTED BY THE 8TH RESPONDENT TO 1ST RESPONDENT.
EXHIBIT P16 TRUE COPY OF REPORT DATED 18.12.2017 SUBMITTED BY 3RD RESPONDENT TO 1ST RESPONDENT.
EXHIBIT P17 TRUE COPY OF LICENSE NO.E/SE/KL/22/138(E102170) DATED 15.06.2017 ISSUED BY THE 10TH RESPONDENT TO THE 12TH RESPONDENT.
EXHIBIT P18 TRUE COPY OF REPRESENTATION DATED 7.9.2018 SUBMITTED BY THE 1ST PETITIONER TO THE 10TH RESPONDENT.
EXHIBIT P19 TRUE COPY OF LETTER NO.L-5-138388/17 DATED 17.06.2019 ISSUED BY THE 1ST RESPONDENT TO THE 11TH RESPONDENT.
EXHIBIT P20 TRUE COPY OF D&O LICENSE DATED 20.07.2019 ISSUED BY THE 11TH RESPONDENT TO THE 12TH RESPONDENT.
EXHIBIT P21 TRUE COPY OF MEMORANDUM DATED 20.09.2019 SUBMITTED BY PETITIONERS AND OTHER PEOPLE OF THE AREA TO THE 1ST RESPONDENT.
EXHIBIT P22 TRUE COPY OF PROHIBITORY ORDER DATED 28.09.2019 ISSUED BY 2ND RESPONDENT.
EXHIBIT P23 TRUE COPY OF REPORT DATED 4.10.2019 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. WP(C).No.18683/2020 18 EXHIBIT P24 TRUE COPY OF COMPLAINT DATED 23.09.2019 SUBMITTED TO THE CIRCLE INSPECTOR OF POLICE ANGAMALY POLICE STATION.
EXHIBIT P25 TRUE COPY OF RECEIPT DATED 23.09.2019 ISSUED FROM THE ANGAMALY POLICE STATION FOR RECEIVING COMPLAINT.
EXHIBIT P26 TRUE COPY OF SITE INSPECTION REPORT DATED 17.10.2019 PREPARED BY THE 8TH RESPONDENT. EXHIBIT P27 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.33422/2018 DATED 6.2.2020. EXHIBIT P28 TRUE COPY OF ORDER DATED 10.07.2020 ISSUED BY THE 2ND RESPONDENT TO PETITIONERS.
EXHIBIT P29 TRUE COPY OF REPRESENTATION DATED 22.07.2020 SENT BY PETITIONERS TO THE 1ST RESPONDENT. EXHIBIT P30 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN WPC 16080/2020 DATED 21.08.2020.
EXHIBIT P31 TRUE COPY OF ORDER IN PROCEEDINGS L5- 138388/2017 DATED 9.6.2020 OF 1ST RESPONDENT. EXHIBIT P32 THREE PHOTOGRAPHS SHOWING CRACKS TO THE HOUSES OF 2ND PETITIONER.
EXHIBIT P33 THREE PHOTOGRAPHS SHOWING CRACKS TO THE HOUSES OF 3RD PETITIONER.
EXHIBIT P34 TWO PHOTOGRAPHS SHOWING LANDSLIDES NEAR TO QUARRY.
EXHIBIT P35 A PHOTOGRAPH SHOWING OVERHEAD WATER TANK SITUATES NEAR THE QUARRY OF 12TH RESPONDENT EXHIBIT P36 A PHOTOGRAPH SHOWING WATER TANK SITUATES NEAR QUARRY OF 12TH RESPONDENT EXHIBIT P37 TRUE COPY OF THE ORDER DATED 27/8/2020 OF THE 2ND RESPONDENT RESPONDENT'S/S EXHIBITS:
WP(C).No.18683/2020 19
EXHIBIT R12(a): TRUE COPY OF NOTICE DATED 10/07/2018 CALLING FOR HEARING ISSUED FROM THE COLLECTORATE.
EXHIBIT R12(b): TRUE COPY OF RELEVANT PAGE OF ATTENDANCE SHEET DATED 16/07/2018.
EXHIBIT R12(c): TRUE COPY OF NOTICE DATED 30/10/2018 CALLED FOR HEARING ISSUED FROM THE COLLECTORATE.
EXHIBIT R12(d): TRUE COPY OF LETTER 09/11/2018 SUBMITTED BY SRI.P.O.VARGHESE BEFORE THE DY.COLLECTOR (LR) EXHIBIT R12(e): TRUE COPY OF NOTICE DATED 17/10/2019 CALLING FOR HEARING ISSUED BY THE RDO.
EXHIBIT R12(f): TRUE COPY OF REPORT SUBMITTED BY THE SUB COLLECTOR DATED 28/10/2019 BEFORE THE DISTRICT COLLECTOR.
EXHIBIT R12(g): TRUE COPY OF NOTICE DATED 07/11/2019, CALLING FOR HEARING TO 11/11/2019 BEFORE THE DY. COLLETOR (LR).
EXHIBIT R12(h): TRUE COPY OF ATTENDANCE LIST OF THE HEARING, WHICH TOOK PLACE ON 11/11/2019.
EXHIBIT R12(i): TRUE COPY OF RELEVANT PAGES OF THE FILE NOTES PREPARED BY THE DY.COLLECTOR.
EXHIBIT R12(j): TRUE COPY OF REPORT OF THE SUB COLLECTOR, DATED 19/03/2020 SUBMITTED BEFORE THE DISTRICT COLLECTOR.
EXHIBIT R12(k): TRUE COPY OF REPORT OF THE SUB COLLECTOR DATED 18/05/2020 SUBMITTED BEFOE THE DISTROCT COLLECTOR.
EXHIBIT R12(l): TRUE COPY OF JUDGMENT PASSED BY THIS HON'BLE COURT DATED 30/07/2020 IN WPC.NO.14730/2020.
EXHIBIT R12(m): TRUE COPY OF ORDER PASSED BY THE 2ND RESPONDENT DATED 27/08/2020.WP(C).No.18683/2020 20
EXHIBIT R12(n): TRUE COPY OF THE CONSENT ISSUED BY THE COMPETENT AUTHORITY DATED 03/09/2019.
EXHIBIT R12(o): TRUE COPY OF THE RENEWED NOC ISSUED BY THE COMPETENT AUTHORITY.
EXHIBIT R12(p): TRUE COPY OF THE PROCEEDINGS OF THE WATER AUTHORITY SANCTIONING GRANT OF NOC.
EXHIBIT R12(q): TRUE COPY OF THE CERTIFICATE ISSUED BY THE EXECUTIVE ENGINEER, IIP, DATED 19/11/2020.
EXHIBIT R12(r): TRUE COPY OF THE CERTIFICATE DATED 23/11/2020 ISSUED FROM THE OFFICE OF THE ASSISTANT ENGINEER, MINOR IRRIGATIN SECTION, KALADY.
EXHIBIT R12(s): TRUE COPY OF THE RELEVANT PAGES OF MINING PLAN.
//TRUE COPY// P.S.TO JUDGE